Excerpt: ...tiff experiences a contemporary sensory awareness of the causal connection between the defendant's infliction of harm and a close relative's injury. (Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 836; see also Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1159 (Ko).) As to these Defendants, Plaintiff Downey alleges that she was on the phone with her daughter, Plaintiff Vance, when the dangerous conditio...

Excerpt: ...dant's time to reply was extended by two court days based upon electronic service, but Plaintiff presents no authority under which Defendant could not rely on the mail service deadline. Moreover, Plaintiff's substantive opposition waived any defect or irregularity in the filing and service of the motion. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Defendant has the burden to establish Plaintiff's claimed deposition costs are unreasonab...

Excerpt: ...d the examination. The exam may be audio‐recorded, but not video‐ recorded. (Code Civ. Proc., § 2032.530, subd. (a); see also Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 492.) Plaintiff is correct that the court lacks jurisdiction to compel participation by the parents. However, if the parents refuse to facilitate the IME, the court has jurisdiction to impose discovery sanctions, including monetary, evidentiary, issue, and terminati...

Excerpt: ...nd sustains the remaining objections for lack of foundation. The court sustains all of Defendants' objections to the declaration of Elias Teshome for lack of foundation. Plaintiffs have shown a reasonable probability of prevailing on the merits. The declaration of Chris L. Boulter, the Custodian of Records for Val‐Chris Investments, Inc., includes an escrow closing statement from June 2011. The closing statement shows that Plaintiffs paid $289,...

Excerpt: ...showing that the challenged cause of action arises from protected activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Code Civ. Proc., § 425.16, subd. (b)(1).) If Defendants meet this burden, the court determines whether Plaintiffs can demonstrate a reasonable probability of prevailing in the action. (Id., at pp. 88–89.) Plaintiffs' first cause of action alleges a violation of 42 U.S.C. § 1983 against individual Defendants Fine and Amer...

Excerpt: ...tent. Plaintiff generically pleads that the “2014‐2019 Chevrolet Silverados have had problems just like those experienced by Plaintiff; namely shaking, vibration, shuddering, jerking, and rough shifting. This problem is so well known and pervasive that it has been given several catchy names, including the ‘Chevy shake,' and the less humorous term ‘death wobble.' GENERAL MOTORS LLC is well aware of the problems experienced by customers, an...

Excerpt: ...he Property and to take necessary steps to evict tenants. Although the order commands Defendant, “to show cause why a preliminary injunction should not be ordered restraining you and enjoining you,” the proposed orders do not appear to restrain or enjoin conduct. They appear to mandate it: 1. Maintain, repair and replace [the Property] in a clean manner … and in compliance with [CCRs]…. 2. Provide the Association access to the Property on...

Excerpt: ...n of emotional distress, the court previously sustained a demurrer without leave to amend. For the second and fifth causes of action, fraud and negligent misrepresentation, Plaintiff alleges: 1. Rizo, acting as an agent of FPR, gave a repair estimate for water damage. 2. Rizo misrepresented that he and FPR would rent Plaintiff some drying fans and allow Plaintiff to return the fans as soon as the walls were dried, and that FPR would clean and res...

Excerpt: ...ruth of the contents of those documents and websites. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194.) For the second cause of action, negligence per se, Sunrun correctly argues that there is not an independent cause of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285– 1286.) However, Plaintiffs allege ...

Excerpt: ...ame moot, Petitioner could be the prevailing party. (Midpeninsula Citizens for Fair Hous. v. Westwood Investors (1990) 221 Cal.App.3d 1377, 1392, fn. 3; see also Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham).) Petitioner sued because the City required her to get a WVAP for her dog, and the City denied her request for a hearing on the WVAP's necessity. Petitioner's claims had merit: the City challenged her pleadings and lost. Peti...

Excerpt: ...he contents of those documents and websites. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194.) For the second cause of action, negligence per se, Sunrun correctly argues that there is not an independent cause of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285– 1286.) However, Plaintiffs allege a direct ...

Excerpt: ...he truth of the contents of those documents and websites. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194.) For the second cause of action, negligence per se, Sunrun correctly argues that there is not an independent cause of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285– 1286.) However, Plaintiffs all...

Excerpt: ...ings in Exhibits 4 through 15, the court takes judicial notice of the filings but not the facts alleged in those filings. (Evid. Code, § 452, subd. (d); see Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) For the balance of the request for judicial notice, the court denies the request and sustains Petitioner's objections. The court sustains Petitioner's objections to AOE exhibits 23, 29, and 36. Addressing the mer...

Excerpt: ...ss of the causal connection between the defendant's infliction of harm and a close relative's injury. (Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 836; see also Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1159 (Ko).) As to these Defendants, Plaintiff Downey alleges that she was on the phone with her daughter, Plaintiff Vance, when the dangerous condition of Defendants' property caused a collision. A...

Excerpt: ...employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (Privette, supra, 5 Cal.App.4th at p. 702, emphasis added.) Defendant must establish, by admissible evidence, that there was an independent contractor. Defendant has failed to do so. Defendant contends that Defendant hired Desert Power as an independent contractor. Labor Code section 2750.5 requires Defendant to present admissible ev...

Excerpt: ...employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (Privette, supra, 5 Cal.App.4th at p. 702, emphasis added.) Defendant must establish, by admissible evidence, that there was an independent contractor. Defendant has failed to do so. Defendant contends that Defendant hired Desert Power as an independent contractor. Labor Code section 2750.5 requires Defendant to present admissible ev...

Excerpt: .... (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the first cause of action under Civil Code section 1708, the fifth cause of action under Code of Civil Procedure section 366.2, the sixth cause of action under Code of Civil Procedure section 708.210, and the seventh cause of actions under Code of Civil Procedure section 22, those sections do not establish causes of action. For the second cause of action under the Fourth Amen...

Excerpt: ... as to the third cause of action, intentional infliction of emotional distress. The court grants Defendant's request for judicial notice as to Exhibit A, but not judicial notice of the truth of its contents. The court grants the request for judicial notice as to Exhibit B. For the first cause of action, Plaintiffs allege no facts showing that Defendant had a mandatory duty to preserve Plaintiffs' “quasi‐property” rights to decedent's remain...

Excerpt: ...der or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406‐07.) Plaintiff must allege with particularity the reckless, oppressive, or malicious conduct. (Id. at 410.) To impose elder abuse damages and attorney fees on an emplo...

Excerpt: ...irst and second causes of action, age discrimination and age harassment, Plaintiff failed to exhaust administrative remedies. Plaintiff filed the original Department of Fair Employment and Housing (DFEH) complaint on February 23, 2018. That complaint makes no allegations of age discrimination. (Defendants' Request for Judicial Notice (RJN) Ex. B.) Plaintiff says nothing about age until he amends the DFEH complaint on February 8, 2019. (Defendants...

Excerpt: ...s liable for injury caused by his or her acts or omissions to the same extent as a private individual. Plaintiff argues these statutes in the opposition, but does not allege liability under these statutes in this cause of action. Even if Plaintiff were to amend the Second Amended Complaint (SAC), Plaintiff's allegation would be that the District was vicariously liable for the negligent hiring and supervision of the employees who failed to supervi...

Excerpt: ...s liable for injury caused by his or her acts or omissions to the same extent as a private individual. Plaintiff argues these statutes in the opposition, but does not allege liability under these statutes in this cause of action. Even if Plaintiff were to amend the Second Amended Complaint (SAC), Plaintiff's allegation would be that the District was vicariously liable for the negligent hiring and supervision of the employees who failed to supervi...

Excerpt: ...l districts are not business establishments under the Unruh Act”].) The court finds no reasonable possibility that Plaintiff can allege facts that would show that the individual defendants would be liable under the Act. For the fourth and seventh causes of action, because demurring defendants are amended Doe defendants, the Second Amended Complaint does not allege that they are teachers or coaches or what other position they held. The court fin...

Excerpt: ... The court has no tentative ruling on the reasonableness of the hours billed because the judge did not receive the supplemental declaration of Timothy Loose until late morning on February 8, even though the document was filed and served on February 4. The court sustains Defendants' objection to the submission of additional evidence with the reply (the declaration of Defendants' counsel Rod Pacheco in an unrelated matter). The previous tentative r...

Excerpt: ...uest for judicial notice. The court sustains Plaintiff's evidentiary objection to Exhibit B of Daniel Hakhamzadeh's Declaration. Because the exhibit is an uncertified transcript, it cannot be cited. (Code Civ. Proc., § 2025.540, subd. (b).) The court sustains Plaintiff's evidentiary objections as to personal knowledge, foundation, and hearsay as to paragraphs 5, 7, 8, 9, and 10 of Robert E. Presby's Declaration. Presby declares that he maintains...

Excerpt: ...Robinson Helicopter Co. Dana Corp. (2004) 34 Cal.4th 979.) However, Defendants have met their burden to produce evidence showing that Plaintiff cannot establish certain elements of fraud: Defendant's misrepresentation and Plaintiff's reliance. Consequently, Plaintiff cannot demonstrate that she is entitled to an award of punitive damages by clear and convincing evidence. Plaintiff fails to meet the shifted burden to produce evidence showing a tri...

Excerpt: ...ction 425.16, subdivision (c), subsection (1), the court must award Plaintiff attorney fees if the court finds that Defendants' anti‐SLAPP motion was frivolous. If any reasonable attorney would agree that a motion is meritless, the motion is frivolous. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199 (Moore).) One key consideration is whether the moving party failed to meet thee threshold burden of establishing that the challenged causes of actio...

Excerpt: ...efendant is not entitled to relief under Code of Civil Procedure section 473, subdivision (b). (Scottsdale Ins. Co. v. Superior Court (Spyglass Homeowners Ass'n) (1997) 59 Cal.App.4th 263, 275.) The Discovery Act provides relief for all Defendant's requests here. (See Code Civ. Proc., §§ 2025.290, 2031.300, 2033.280.) To merit relief under the Discovery Act, the moving party must serve code‐ compliant responses and show mistake, inadvertence,...

Excerpt: ...nswer within 30 days. The court grants Defendant's request for judicial notice. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 fn.1.) Defendant demurs to the first, second, and third causes of action based on Plaintiffs' failure to comply with the Tort Claims Act. The 4AC references “Exhibit 1” (see, e.g., 4AC, ¶ 25), but Plaintiff attached a document marked as “Exhibit A.” For clarity, the court will use “Exhibit A/1.�...

Excerpt: ...% liable,” and “100% responsible.” (Decl. of David J. Mendoza, ¶ 3; Exhibit A [Requests for Admissions 1, 2, and 3].) “[R]equests for admission serve to narrow discovery, eliminate undisputed issues, and shift the cost of proving certain matters.” (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353–354 [emphasis added].) Because Defendant has admitted liability, that fact is conclusively established and ...

Excerpt: ...just, the court should award compensation for all of the hours reasonably spent, including those spent to recover attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) However, “[a] fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) Here, the evidence tends to show that Plaintiff's fee request i...

Excerpt: ...ornia, Inc. (1993) 14 Cal.App.4th 612, 616.) As to the general demurrer, Plaintiff's allegations of elder abuse are sufficiently particular for pleading purposes. Plaintiff alleges: (1) she was admitted to HGMC and was assessed to be a high risk for skin breakdown; (2) HGMC staff consistently and repeatedly failed to follow the skin integrity care plan created for Plaintiff; (3) HGMC failed, on enumerated days, to inspect and monitor Plaintiff fo...

Excerpt: ... Cal.App.4th 690, 697.) The court denies the motion as to Form Interrogatories (FROGs) 12.3 and 15.1 because Plaintiff did not meet and confer before filing the motion. The court finds that Plaintiff's meet‐and‐confer efforts were otherwise adequate. The court grants the motion as to FROGs 12.1, 12.2, and 12.6. (See Puerto v. Sup. Ct. (Wild Oats Markets, Inc.) (2008) 158 Cal.App.4th 1242 [no significant privacy invasion for discovery of names...

Excerpt: ...rata re: supplemental points and authorities. The court sustains Plaintiff's objections to the declaration of Mark S. Algorri. Defendant moves to set aside the default based on extrinsic fraud. The court should grant such relief only under extraordinary circumstances. (Rappleyea v. Campbell (19974) 8 Cal.4th 976, 981–982.) The court finds no extraordinary circumstances here. Extrinsic fraud occurs when something or someone deprives a party of p...

Excerpt: ...ays before the hearing date. For Plaintiff Esparza, the court grants the motion, but the order becomes effective after the court resolves the issue of standing for Plaintiff Moralez. The court denies Plaintiff's request for judicial notice. The contents of amicus curiae letters are not judicially noticeable. (Evid. Code, § 452.) Moreover, on November 24, 2020, the Supreme Court denied review for Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ...

Excerpt: ... Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Id.) Here, both sides rely on outside facts to attack or defend the truth of the allegations in the Second Amended Complaint (SAC). The court has disregarded both sides' external evidence. The court denies Defendant's request for judicial notice. The fact that the subject property i...

Excerpt: ...ed States Constitution ensure the right to jury trial. Defendant cites no authority that guarantees parties in a civil action the right to have jurors in the same room during trial. Defendant argues that jurors must occupy the same space as the court, the lawyers, the litigants, and the witnesses because "the constitutional right to jury trial is the right as it existed in common law." (Notice of Motion and Motion (Motion), at p. 4 [emphasis in o...

Excerpt: ...and second causes of action, Plaintiff lacks standing. Plaintiff fails to allege that he listed the first, second, and sixth causes of action in his bankruptcy petition. When a person files for bankruptcy, any causes of action that person previously possessed belong to the bankruptcy estate. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1001 (Cloud).) "Causes of action are separate assets which must be formally listed…. Simply lis...

Excerpt: ...pp. 4th 399, 414.) The allegations must “include facts showing a unity of interest and a resultant injustice, prerequisites to an alter ego theory.” (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 74.) The court grants the motion with 30 days leave to amend for the third, fourth, sixth, eighth and ninth causes of action. The court grants the motion without leave to amend for the first, second and seventh causes of action. Plaintiff has agr...

Excerpt: ... must remove the following language from paragraph 3 on page 4 of the proposed order: The Court further finds that the terms of the Settlement have no obvious deficiencies. The court finds that the risks of further prosecution are substantial and include the risks that (1) penalties would be reduced after evaluation of the totality of the circumstances, or (2) that no penalties would be awarded for some or all of the alleged violations. The movin...

Excerpt: ...and ninth causes of action. Court finds no reasonable possibility that Cross‐ Complainant can cure the defect. (Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240.) For the second cause of action, breach of contract, the Second Amended Cross Complaint (SACC) fails to state the terms of the oral contract between Cano and Cross‐Defendants. (Cheema v. L.S. Trucking, Inc. (2019) 39 Cal.App.5th 1142, 1149; see also Daniels v. Select Portfolio Serv...

Excerpt: ...ations. First, by making this request in its reply, Plaintiffs have not given the adverse parties sufficient notice of the request. Second, Plaintiffs have not given the court enough information to take judicial notice of the matter. The request for judicial notice does not give enough context to interpret the table in the request. A court may take judicial notice of official acts and public records, but not necessarily the truth of the matters r...

Excerpt: ...o the County from Plaintiffs' negligence claims, but it does not apply to the individual Defendants. For the individual Defendants, Plaintiffs cannot recover for Defendants' failure to summon immediate medical care under Government Code section 845.6 or failure to provide adequate facilities, equipment, and personnel under Government Code section 845.2, but those immunities do not apply to Plaintiffs' other allegations that support their negligen...

Excerpt: ... television (CCTV) information and the Standard Operating Procedures (SOPs) on the storage and use of firehoses. The court orders the parties to meet and confer to prepare a stipulated protective order, to be submitted to the court within 10 days. Defendant must provide the requested CCTV and SOP information within 20 days. Plaintiff seeks the home addresses and phone numbers of three store employees: one who took Plaintiff's statement, another w...

Excerpt: ...nistrative Record to determine whether the weight of the evidence supports the Hearing Officer's finding that Petitioner engaged in misconduct. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.) However, the administrative decision has a strong presumption of correctness. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811–812, 817.) The evidence supporting the Hearing Officer's finding of misconduct is overwhelming. The Hearing ...

Excerpt: ...id not create the dangerous condition or have knowledge of the dangerous condition. First, El Super did not create the dangerous condition, a piece of orange on the floor on which Plaintiff alleges she slipped. Second, based on evidence presented, El Super did not have actual notice of the condition. The declaration of Gaby Mendoza establishes that the surveillance video taken on the date of the incident shows that no El Super employee saw the or...

Excerpt: ...ions 14 (only as to what actions management took), 17 (only as to what HR thought), 20 (to the extent that the out‐of‐court statement is offered for the truth), 50 (to the extent that the out‐of‐court statement is offered for the truth), and 59 (as to first paragraph only). The court overrules remaining objections. The court grants summary adjudication of the ninth and eleventh causes of action. The court otherwise denies the motion. For ...

Excerpt: ...ike. Court grants MyDyer's requests for judicial notice of Stidham's declaration in support of LLR's Opposition to MyDyer's application for the appointment of a receiver and the transcript of the hearing on the demurrer to the First Amended Cross‐Complaint (FACC). However, the court can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact, and conclusions of law. (Ramsden v. Western Union (1977)...

Excerpt: ...e number on Defendant. Plaintiff asks the court to correct his error nunc pro tunc. Nunc pro tunc orders exist to correct the court's errors, not a party's error. (See Golba v. Dick's Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1265‐1266.) The court denies Plaintiff's request. Notice of entry of judgment was served April 22, 2020. During that time, the court was closed because of the COVID ‐19 pandemic. The presiding judge of this court...

Excerpt: ...(Sierra) 151 Cal.App.3d 447, 449; Vinson v. Superior Court (1987) 43 Cal.3d 833.) Then the court must balance the right of privacy against the need for discovery. (Valley Bank of Nevada, supra, 15 Cal.3d at 657.) Plaintiffs' workers' compensation claim records are directly relevant to her lost earnings claim. In response to interrogatories, Plaintiff claimed she was unable to work from March 22, 2018, to April 19, 2019, as a result of her injurie...

Excerpt: ...iff blamed Defendant Thompson's conduct for her subsequent pregnancy (by another person). This question necessarily involves sexual conduct under Code of Civil Procedure section 2017.220. Counsel's explanatory remarks after the question make clear that counsel wanted to know whether Plaintiff blames Defendant Thompson for dangerous sexual activities and pregnancy. Plaintiff's cousin's and aunt's identities (69:4‐71:1, 74:8‐75:3, 107:15‐109:...

Excerpt: ...emurrer was unsupported by argument or authority. The court grants Defendants' request for judicial notice of recorded documents, but the judicially noticeable facts are not dispositive here. The fact that Defendant Price Manufacturing is not the record title owner does not prove, for pleading purposes, that Price Manufacturing lacks an ownership interest in the property. For the first cause of action, Plaintiffs fail to allege a breach of contra...

Excerpt: ... hearsay allegations contained in those exhibits. Court grants Request for Judicial Notice Exhibits 5, 9, and 12‐13. Court grants Plaintiffs' Request for Judicial Notice Exhibits A‐D and M, to the extent these records exist as part of the court record or file, but does not accept as true the content of hearsay allegations contained in those exhibits. Court grants Plaintiffs' Request for Judicial Notice Exhibits E through L. Page 2 of 3 As to ...

Excerpt: ...guage. (See FACC, ¶¶ 10‐37; compare FACC, ¶ 46.) For the first cause of action for fraud, LLR alleges several dates when Kang orally made misrepresentations. However, it is not clear which representations were made on which date, so LLR failed to plead this cause of action with the required specificity. For the second cause of action, LLR uses the fraud alleged in the first cause of action as a basis for alleging that MyDyer received stolen ...

Excerpt: ...tion agreement. (Declaration of Deleah Jones, Exhibit B.) Even though Defendants did not sign the arbitration agreement, it applies to Defendants because of agency and estoppel. (See Thomas v. Westlake (2012) 204 Cal.App.4th 605, 613; Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 788.) Here, the operative complaint alleges an agency relationship between Adesa and Defendant PeopleReady (PR). Defendants have established that PR absorbed Labor Rea...

Excerpt: ...e motion shall provide argument and evidence of the following: a. The nature of the violations. The Motion does not describe the nature of the violations. b. The number of alleged individual violations, including both the length of the relevant employment period and the number of employees allegedly employed during that period. Plaintiff indicates that, assuming that the PAGA period would last up to the time of the bankruptcy proceedings, the num...

Excerpt: ...mber that Plaintiff attributes to the address book entries "Chris" or "Chris Next Door." Plaintiff must preserve these messages on any phone subject to inspection. The court denies both parties' requests for attorney fees. Romash demands inspection of Plaintiff's cell phone that Plaintiff used at times relevant to the complaint. Plaintiff objects that the request violates his right to privacy and asks for irrelevant Page 2 of 2 evidence. The cour...

Excerpt: ...r the fifth cause of action, Plaintiff incorporates her harassment allegations. (Complaint, ¶ 120.) She sufficiently alleged harassment. (Complaint, ¶¶ 9‐15, 28‐29.) Defendant's demurrer does not lie because Plaintiff has stated at least one valid claim. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 ("A demurrer must dispose of an entire cause of action to be sustained.").) For the sixth and seventh causes of action, it ...

Excerpt: ...o accept the offer. (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.) However, "a defendant may still extend a single joint offer, conditioned on acceptance by all of them, if the separate parties have a 'unity of interest such that there is a single, indivisible injury.'" (Ibid.) Milgard concedes that its offer did not meet the usual 998 requirements but it argues that the single indivisible injury exception applies. Milgard provid...

Excerpt: ...ervisor made demeaning comments about the plaintiff's body odor and arm sores, refused to respond to the plaintiff's greetings, made demeaning facial expressions and gestures toward the plaintiff, and gave small gifts to all employees except the plaintiff. (Roby, supra, 47 Cal.4th at 708‐709.) Plaintiff makes no similar allegations. Plaintiff contends that the federal court has already found her harassment claim viable. The federal court remand...

Excerpt: ...04 Cal.App.4th 605, 613; Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 788.) Here, the operative complaint alleges an agency relationship between Adesa and Defendant PeopleReady (PR). Defendants have established that PR absorbed Labor Ready, and that Labor Ready was a party to the arbitration agreement. The court finds that equitable estoppel applies because Plaintiff's claims are rooted in the employment relationship with the staffing agency a...

Excerpt: ..., Inc. (1996) 14 Cal.4th 479, 493.) Thus, the filing on January 22, 2019, is timely for the second cause of action. However, Plaintiff fails to allege sufficient facts showing that the filing for the harassment causes of action are timely. Plaintiff's factual allegations are sufficient to show harassment. Plaintiff alleges in the First Amended Complaint (FAC) that her supervisor constantly talked to Plaintiff about sex and the supervisor's sex li...

Excerpt: ...ment Code § 820.2, a public employee is liable for injury caused by his or her acts or omissions to the same extent as a private individual. Plaintiff does not allege liability under these statutes in this cause of action. For the first cause of action, California has adopted Title IX standards when interpreting Education Code section 220. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567.) Title IX applies to when a school emplo...

Excerpt: ...er constitutional or statutory provisions; (2) public, in the sense that it inures a benefit to the public rather than the individual; (3) well‐established at the time of the discharge; and (4) substantial and fundamental. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.) As Plaintiff has sufficiently pled retaliation (as discussed below), the court overrules the demurrer. Second, Third, and Fifth Causes of Action: Retaliation, Harassme...

Excerpt: ...ction. The court denies the motion for summary judgment. As discussed below, the court finds that there is a triable issue of material fact as to whether Defendant Greco's conduct was reasonable because of paragraph 13 of James G. Kent's declaration. The court overrules all of Plaintiff's objections except: (3) sustained as to the second sentence; (5) sustained; (18) sustained. The court overrules Defendants' objections 1 through 7. The court dec...

Excerpt: ...atute, “substantial probability” means “very likely” or “a strong likelihood” rather than simply more likely than not. (Id.) Plaintiff has not established a strong likelihood that he will prevail on his claims for punitive damages as to any causes of action based on the evidence provided at this time. Discrimination based on medical condition Plaintiff alleges that he was terminated because he took medical leave due to his leg injury....

Excerpt: ...l policy that denied required rest periods and that Defendants enforced that policy. (Third Amended Complaint (TAC) ¶¶ 13, 45, 46.) Plaintiff alleges that violated California law by requiring employees to stay on the premises during rest periods. These are sufficient facts to state a cause of action. (See Brinker Rest. Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033.) Whether Defendants consistently applied the policy goes to damages. (Ibi...

Excerpt: ...(1994) 29 Cal.App.4th 1746.) Page 2 of 2 “A violation of section 23175 [felony driving under the influence] requires that a person be convicted of driving under the influence (§ 23152) and that the offense occurred within seven years of three or more separate violations of driving under the influence. Thus, we are discussing a recidivist type crime involving an extremely dangerous activity. Having suffered at least three previous convictions f...

Excerpt: ...rrules Defendants' best evidence objections to Michael Zelman's declaration. The Legislature repealed the best evidence in 1998. (People v. Goldsmith (2014) 59 Cal.4th 258, 269; see Evid. Code, § 1521, Best Evidence Rule, 26 Cal. L. Revision Comm'n Reports 369 (1996).) Page 3 of 4 Moreover, the declaration does not seek to prove the contents of a document under Evidence Code section 1521. It lays foundation for the attached exhibits under Eviden...

Excerpt: ...the demurrer without leave to amend as to the second and third causes of action, unless Plaintiff can explain a fix for these causes of action. The court sustains the demurrer without leave to amend as to the fourth cause of action. Plaintiff has withdrawn this cause of action. For the first cause of action against Xiang, the First Amended Complaint (FAC) alleges that Xiang agreed to sell Plaintiff a 51% interest in Golden Globe, a controlling in...

Excerpt: ...ranty. Although they are not identical, a reasonable trier of fact could conclude that the same person signed both documents. (Evid. Code, § 1417.) Plaintiff's declaration establishes that she talked to Defendant about the project, and that Defendant said he was a partner in Hi‐Fi Enterprises. (Declaration of Lyn Kaveney (DLC), at ¶ 3.) Plaintiff declares Defendant said he would personally guarantee the investment. (DLC ¶ 4.) Plaintiff submi...

Excerpt: ...his hearing. Court denies the requests for attorney fee sanctions because neither party prevailed. Barragan RFP Nos. 10 and 11 Plaintiff requests photographs, pictures, diagrams, drawings, film, video, and negatives depicting any individual involved in the Incident at or immediately after the Incident (RFP No. 10) and those depicting injuries sustained by any individual involved in the Incident (RFP No. 11.) Defendant objects that the RFP violate...

Excerpt: ...ase Closure, and obtained a Right‐to‐Sue letter for her FEHA claims. Defendant DeBolt cites no authority requiring that such dates must be alleged. A prerequisite to bringing a civil action under FEHA is the filing of an administrative complaint with the DFEH no later than one year after the alleged unlawful practice occurred, and obtaining a “right‐to‐sue” notice from the DFEH. (Gov. C. § 12960, § 12965(b)). Under FEHA, exhaustion ...

Excerpt: ... complete all discovery before the arbitration hearing date.  In paragraphs 11 and 12, the parties agree to a timeline for discovery  In paragraph 15, the agreement gives the court jurisdiction to enforce any provisions of this agreement if any party fails to comply with the agreement. The agreement does not expressly say that the court retained jurisdiction to hear discovery motions, but it implies that power. The terms of the agreement in...

Excerpt: ...ontroverted evidence is insufficient as a matter of law to support the verdict or decision. (Marriage of Beilock (1973) 81 Cal.App.3d 713, 728, 733.) Here, there was a conflict in the evidence as to whether Defendant owed Plaintiff reimbursement for tools under Labor Code section 2802, and substantial evidence supported the trial judge's decision for Defendant on that point. Plaintiff testified he spent $2,000 for tools to carry out his work for ...

Excerpt: ...n the agreement, she agrees not to sue for Defendant's “ordinary negligence.” Plaintiff argues that Defendant's actions fall outside the release because she alleges gross negligence. Plaintiff's complaint alleges that Defendant was grossly negligent because Defendant did not care for the horses and allowed them to become malnourished and dehydrated. Defendant established that it cared for its animals and that the horses were not malnourished ...

Excerpt: ... skill, prudence, and diligence as members of his or her profession commonly possess and exercise, (1) a breach of that duty, (3) a proximate causal connection between the breach and the resulting injury, and (4) actual loss or damage resulting from the attorney's negligence.” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60.) Plaintiff's complaint is brief, but it addresses all four elements. 1. Duty: Defendants agreed to represent plaintiff ...

Excerpt: ...ons as follows: 1. Exhibit E, Defendant Jose Velasco's Answer, overruled as to foundation; sustained as to hearsay for factual assertions in the document. 2. Exhibit F, Defendant Velasco Construction's Answer, overruled as to foundation; sustained as to hearsay for factual assertions in the document. 3. Exhibit J, Traffic collision report, overruled as to foundation. The party objecting to admission of a police report has the burden to show that ...

Excerpt: ... 3 and 7, but only as to the filing of the documents, not the hearsay statements contained in the documents. However, because both documents contain the Ministry's admissions, the contents are admissible. The Ministry's opposition is both untimely and procedurally defective. In its separate statement, the Ministry failed to comply with Code of Civil Procedure section 437c, subdivision (b), subsection (3), and California Rules of Court, rule 3.135...

Excerpt: ...ustrates the purpose of the contract. (Bionghi v. Metropolitan Water District (1999) 70 Cal.App.4th 1358, 1370.) The FAC alleges that there was a “covenant” to act in good faith and deal fairly. (FAC, ¶23). The FAC then relies on the same allegations of breach of contract cause of action. (FAC ¶24.) However, it also alleges that Defendants failed “to act only as and [sic] advisor in governmental relations.” (FAC ¶24.) This allegation g...

Excerpt: ...ects Defendants' request to strike costs for the second trial because Plaintiffs' counsel caused a mistrial in the first trial. Defendants cite no authority for denying costs on that basis and the court is not inclined to do so without such authority. The court finds that Defendants did not obtain a more favorable judgment than Plaintiff Oscar Esparza's Offer to Compromise under Code of Civil Procedure section 998. If a defendant rejects a plaint...

Excerpt: ...overy of admissible evidence. None of the questions asked for privileged information or private information protected by the California or United States Constitutions. After reviewing the transcript, the court finds that both counsel acted disrespectfully and unprofessionally. The court puts both parties on notice that if counsel persist, the court will appoint a discovery referee on its own motion under Code of Civil Procedure section 639. The p...

Excerpt: ...mary adjudication as to BSA Framing's eighth cause of action for Declaratory Relief and Applied Underwriters Captive Risk Assurance Company's first crossclaim for breach of contract, because the Reinsurance Participation Agreement (RPA) is void as a matter of law. The Court of Appeal has consistently held that endorsements amending or modifying a workers' compensation policy of insurance must be filed according to state regulations, and failure t...

Excerpt: ...t (1962) 58 Cal.2d, 220.) Defendant's arguments that the interrogatories ask for irrelevant information are unpersuasive. Defendant's arguments that he does not know what facts are material because the Plaintiff filed a poorly drafted complaint is unpersuasive. Defendant filed an answer with 14 affirmative defenses, not a demurrer, so Defendant has some understanding of what material facts might support his denial in Form Interrogatory 15.1. For ...

Excerpt: ...to be excusable neglect. An attorney cannot review what he doesn't have, even if his staff has lost or misplaced it. However, the uncontroverted evidence shows that defense counsel received Plaintiff Francisco's cost bill. Defense counsel has not established that a reasonably prudent attorney would have failed to address the known cost bill in a timely way. The court does not find that Plaintiff would be prejudiced if the court grants the motion....

Excerpt: ... Defendant does not explain the delay after November 2017. On the merits, Defendants have not established that it is legally certain that Plaintiffs' damages will be less than $25,000. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 269‐270; Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 278.) According to the materials filed with the motion, economic damages could range from $8,500 to about $18,000. It is reasonably possible that a ...

Excerpt: ...aintiff must plead claims with particularity. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) The court may read the complaint as a whole to determine Page 3 of 3 facts in context. (Perkins v. Superior Court (General Tel. Directory Co.) (1981) 117 Cal.App.3d 1, 6‐7.) The First Amended Complaint (FAC), as a whole, sufficiently alleges sexual harassment, which supports a claim for punitive damages. The FAC alleges that Defendan...

Excerpt: ...as based on a protected class (i.e., age, disability) ; and 3) the harassment was “so severe or pervasive” as to alter the conditions of his employment and create an abusive working environment. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608; Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Harassment includes verbal harassment (such as epithets, derogatory comments or slurs on the basis of a protected class), physical haras...

Excerpt: ... overrules for the third cause of action overruled. Consent is not effective if fraudulently obtained. (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 375; Rains v. Sup. Ct. (Center for Feeling Therapy Psycho. Corp.) (1984) 150 Cal.App.3d 933, 940.) Plaintiff alleges that she consented to spinal fusion surgery based on fraudulent representations by Defendant. (SAC, ¶¶ 90‐98; see also ¶¶ 120‐122.) Fourth, fifth, and sixth causes of actio...

Excerpt: ...f alleges is a violation of the Fourth Amendment. (Request for Judicial Notice (RJN), Ex. 1, Section 5.) The Bane Act cause of action substantially corresponds to the claims presented in the Torts Claim because Plaintiff alleges that Deputy Greco committed violent acts to interfere with Decedent's right to be free of excessive force and unreasonable searches and seizures. This allegation complies with the Torts Claim Act requirements under the su...

Excerpt: ...urt finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice, general ignorance of the law or lack of knowledge of the rules, or unjustifiable negligence in the discovery or research of the law, laxness or indifference, normally relief will be denied”] [citations and internal quotation marks omitted].) Moreover, an attorney's duty of competence includes “the obligation to know those plain an...

Excerpt: ...owledge of material facts not known to the plaintiff; 3) when the defendant actively conceals a material fact; or 4) when the defendant makes partial representations but suppresses other material facts. (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1186.) When one party knows material information, but not the other party, failure to disclose is not fraud unless the parties have a relationship. (Id. at 1187) A relationship between t...

Excerpt: ...ement. Page 4 of 4 The original limited partnership agreement contains an arbitration provision, but Plaintiff did not sign it. Golden Taste and Plaintiff Xiang allegedly executed a first amendment to the original agreement, but that amendment does not contain an arbitration provision. It has no language binding Plaintiff to the terms of the original partnership agreement. It says that the original partners executed the agreement on December 20, ...

Excerpt: ...cts Plaintiff's right to privacy as conditions unrelated to the claim or injury. (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 (Britt).) Mere speculation that some portion of additional records might be relevant to some substantive issues does not outweigh the plaintiff's privacy rights. (Davis, supra, 7 Cal.App.4th at 1017.) The party seeking discovery must show a “particularized need for the confidential information sought.” (Britt, su...

Excerpt: ...App.3d 59, 73.) Plaintiff must plead facts that show how, when, where, to whom, and by what means Defendant made false representations. (Id., citing Hill Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707.) Here, the First Amended Complaint (FAC) does not satisfy those elements. For the eighth and ninth causes of action, Plaintiff alleges specific performance and injunctive relief. These are remedies, not causes of ac...

Excerpt: ...reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (See Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611.) Admissibility is not the test. Discovery is permissible if it is reasonably calculated to lead to admissible evidence. (Lipton, 48 Cal.App.4th at 1611.) Warranty and repurchase policies meet this definition in this case. The parties did not meaningfully meet and confer to define “Pow...

Excerpt: ...pondeat superior. (Monell v. Department of Social Services (1978) 436 U.S. 658, 691.) Instead, an agency can be liable only based on policy, custom or practice. (Id. at 690.) Furthermore, an agency cannot be liable for a single act unless there is proof that the agency had a policy that caused the act. (City of Oklahoma City v. Tuttle (1985) 471 U.S. 808, 820‐821.) Plaintiff does not plead policy, custom or practice anywhere in the complaint. T...

Excerpt: ....5th 996, 1007.) Court denies the motion for summary judgment for Defendant Susan Senkbeil. Court grants the motion for summary adjudication for the fourth and seventh causes of action and denies the Page 3 of 4 motion for the remaining causes of action. The undisputed facts do not establish why Defendant Susan Senkbeil is individually liable, why she is liable for negligent misrepresentation, or why she is liable for the consequential damages Pl...

Excerpt: ...intiff can cure the defect. (Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240.) Public Utilities Code section 7951 requires willful and malicious injury. It does not define “willful” or “malicious,” and no case interprets those terms as used in the statute. In other contexts, willful misconduct requires either knowledge that serious injury will probably result or wanton and reckless disregard. (Colich & Sons v. Pacific Bell (1988) 198 C...

Excerpt: ...scovery occurred after a pattern of fraud emerged. The court would have to do fact‐ finding beyond the complaint and judicially noticeable facts to resolve when complaining party could have reasonably discovered the alleged fraud. For that reason, Defendant fails to meet that burden. The court finds State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402 (Metz), distinguishable. First, that case involved a ...