Excerpt: ... court to generally issue a protective order if: (1) the discovery “is unreasonable cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive”; or (2) the discovery “is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” Of course, a plaintiff must be a member ...

Excerpt: ...rse, orders from that court). Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113. Redact social security numbers from any publicly available documents and sustain plaintiffs' objection 25. Appearances requested to discuss the most effici ent way to accomplish this. Sustain plaintiffs' objections 1, 5 -9, 13, 16, 21, 25 -26, 30 -33, overrule all of plaintiffs' other objections. Sustain defendant's objections 1, 6 -7, 1...

Excerpt: ...only has an av erage). Is plaintiff's counsel aware of other collective or representative actions asserting similar claims? CMO ¶ H.3. 3. No declaration from defense counsel as to whether counsel is aware of similar claims in another action. CMO ¶ H.3.b. 4. No declara tion from settlement administrator or from plaintiff's counsel as to whether multiple bids from settlement administrators were sought and whether the minimum bid was accepted and ...

Excerpt: ... Keating (1984) 465 U.S. 1 12; Volt Ino. Sciences Inc. v. Board o Trustees o Leland Stanord Junior University (1989) 489 U.S. 468 477. The FAA embodies a strong ederal policy avoring arbitration. Southland 465 U.S. at 12. The arbitration agreement provides that “[a]rbitration shall be conducted in accordance with and pursuant to the then-e
¯ective provisions o the CAA or i applicable the then-current provisions o the FAA.” D...

Excerpt: ... Keating (1984) 465 U.S. 1 12; Volt Ino. Sciences Inc. v. Board o Trustees o Leland Stanord Junior University (1989) 489 U.S. 468 477. The FAA embodies a strong ederal policy avoring arbitration. Southland 465 U.S. at 12. The arbitration agreement provides that “[a]rbitration shall be conducted in accordance with and pursuant to the then-e
¯ective provisions o the CAA or i applicable the then-current provisions o the FAA.” D...

Excerpt: ...al Arbitration Act or California Arbitration Act govern this dispute Defendant o
¯ers su
¯icient evidence that it is engaged in interstate commerce Further, the arbitration agreement expressly states that the FAA applies If an arbitration agreement expressly states that it is governed by the FAA the FAA applies Aviation Data, Inc v Am Express Travel Related Servs Co, Inc (2007) 152 CalApp4th 1522, 1534-1535; Victrola 89, LLC v Jama...

Excerpt: ...se of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable." Freemont Indemnity Co. v. Freemont General Corp. (2007) 148 Cal.App.4th 97, 114; StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457 n. 9 (although the existence of a document may be judicially noticeable, the truth of statements in it are not subject to judicial notice if reasonably disputable). Deny request for judicial ...

Excerpt: ...se of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable." Freemont Indemnity Co. v. Freemont General Corp. (2007) 148 Cal.App.4th 97, 114; StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457 n. 9 (although the existence of a document may be judicially noticeable, the truth of statements in it are not subject to judicial notice if reasonably disputable). Deny request for judicial ...

Excerpt: ... Labor Code section 887 allows employers of emergency ambulance employees to require them to be reachable via a portable communications device throughout their meal and rest break. They assert the facts alleged do not support the fifth cause of action. Defendants seek to strike allegations for failure to reimburse uniform purchases and uniform maintenance because said reimbursements are not recoverable. They seek to strike references to waiting t...

Excerpt: ...f any other class, representative or collective action in another court that asserts claims similar to those asserted in this action. He does not, however, state whether he made a reasonable inquiry of other members of the firm to determine if any of those individuals are aware of any such cases. 4. CMO 3(c): If a class member fails to cash their check by the deadline, then the settlement administrator shall distribute such funds to the Californi...

Excerpt: ...ll matters stated therein. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 disapproved on other grounds In re Tobacco Cases II (2007) 41 Cal.4th 1257. Deny petitioners' request for notice of items 17-20 because they are not facts and propositions that are not reasonably subject to dispute. As to the first cause of action, for violation of CECA, questions of whether an action is barred by the statute of limitations are typically q...

Excerpt: ...ited to the record. He argues the owner of an entity does not own the entity's assets or interests. Petitioner responds that California Public Resources Code section 21167.5.5(a) requires the petitioner to name any parties that received an approval. It argues that this was not frivolous to demonstrate malicious prosecution, to which Hasso fails to establish. It argues the issue is whether the naming of Hasso was improper, not whether he should ha...

Excerpt: ...nd that petitioners failed to exhaust administrative remedies. Further, City argues that the finalization of the master plan was not a project and any challenge must have been brought after the NOD was issued on October 8, 2021. Petitioners argue both that the 180 day limitations not the 30 day period apply and that the statute began to run on February 1, 2022 when the City Council approved the master plan and map. " 'Questions concerning whether...

Excerpt: ...erruled. The complaint sufficiently alleges that plaintiff was employed by both Medcare Farms and Medcare 2.0. Nor is it required that the complaint allege "specific allegations of fact as to why the Court should consider those separate employers to be considered joint employers" as defendant Medcare contends. These would be evidentiary facts, which are not required. The rules of pleading only require ultimate facts to be alleged; evidentiary fac...

Excerpt: ...nding the employment relationship in question." Vernon v. State of California (2004) 116 Cal.App.4th 114, 124-125. The keystone of the employment relationship is the requirement that the employer exercise direction and control over the person's work. Bradley v. Dept. of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612, 1625. Other factors to consider in determining whether a secondary employer may be liable in an employment action inclu...

Excerpt: ... redistributed to Class Members. Counsel appears to have misunderstood this issue. As explained in the CMO, the Court believes that the redistribution of uncashed checks to the members of the class who did cash their checks better serves the public interest than distribution to a cy pres. If the parties chose to use a cy pres rather than the distribution back to class members, the CMO requires an explanation. This explanation was not provided. 3....

Excerpt: ...te them as a party after their true name is discovered. Binnquist does not identify under what statute it is seeking to quash or strike the Roe Amendment for failing to comply with CCP S 474. It cites to McClatchy v. Colbentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, which holds that a motion can be brought to quash or strike the Roe Amendment. In McClatchy a moton to quash was brought under California Code of Civil Procedure secton 4...

Excerpt: ... in favor of those processes." Bono v. David (2007) 147 Cal. App. 4th 1055, 1062. A petition to compel arbitration is a suit in equity seeking specific performance of an arbitration agreement. Hotels Nevada, LLC v. Los Angeles Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 347. California Code of Civil Procedure secton 1281.2 provides that "[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arb...

Excerpt: ... matter regarding similar claims did not preclude Plaintiff from asserting the class and PAGA claims. The fact that a settlement had been reached did not resolve the other lawsuit (RIC1901197) because the court was required to approve the settlement regarding the class and PAGA claims. Perhaps the settlement reduced the likelihood that plaintiff could proceed on her PAGA claim but it did not make it impossible—the court could have denied approv...

Excerpt: ...42 USC S 1985(3)), and retaliation (42 USC S 1983). Defendant moves for summary judgment, arguing that each of the section 1983 claims fail because no policy violation was alleged as required in Modell v. New York City Dept. of Social Services (1978) 436 U.S. 658. Plaintiff asks the court to strike the declarations of DDA Lucero and Senior Audio Video Technician Lewandowski because, he asserts, they are contradictory and conclusory. To the extent...

Excerpt: ...re). 3. Need counsel's estimate, as to each claim, of total damages, penalties or other relief that the class could reasonably expect and the likely award at trial for all claims collectively. 4. Declaration from Quintlone identifies some cases that he worked on were class certification was granted and one trial, but he is not the attorney who submitted the declaration with the estimates, Markham was. 5. Is the one PAGA case the only other collec...

Excerpt: ...uired to authenticate the respondent's signature on an arbitration agreement as a preliminary matter in the moving papers and is only required to do so if the signature is challenged. Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846. under California Civil Code section 1633.9(a), "An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any m...

Excerpt: ...s counsel does not set forth the number of class certification orders counsel has obtained after contested motions or the number of trials conducted alleging such claims. 5. Need estimate of recovery by average class member is settlement were approved and range of recovery as well as average payment to aggrieved employees. Average individual settlement payment is not sufficient. 5. Did plaintiff's counsel inquire of others in their firm(s) as to ...

Excerpt: ...tively appurtenant to land Bank of Visalia v. Smith (1905) 146 Cal.398 "[T]he shares themselves are personalty and do not pass upon a conveyance of land unless they are appurtenant thereto; they may become appurtenant by the adoption of appropriate provisions in the by-laws of the water company Wheat v. Thomas (1930) 209 Cal. 306, 315. Here, section 4 of Article XII of the bylaws (Complaint, Ex. 5) implies that the stocks are appurtenant to land ...

Excerpt: ...Under California Government Code section 12965(c)(6), "[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, " Plaintiff's complaint asserts claims brought under the California Fair Employment and Housing Act, which California Government Code section 12965 falls under. Additionally, she asserted wage and hour claims and a Priv...

Excerpt: ...hould be resolved in favor of those processes." Bono v. David (2007) 147 Cal. App. 4th 1055, 1052. A petition to compel arbitration is a suit in equity seeking specific performance of an arbitration agreement. Hotels Nevada, LLC v. Los Angeles Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 347. California Code of Civil Procedure section 1281.2 provides that "[o]n petition of a party to an arbitration agreement alleging the existence of a writte...

Excerpt: ... previously considered, and some valid reason for not offering it earlier. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Garcia v. Hejmadi (1997) 58 Cal.App.4th 574, 690. The burden is comparable to that of a party seeking a new trial on the ground of newly discovered evidence; that is, the information must be such that the moving party could not with reasonable diligence have discovered or produced it at trial. New York Times Co. v. Su...

Excerpt: ...State of Calif. (2002) 94 Cal.App.4th 1285, 1302. Where the application of the presumed measure of damages would lead to an unjust result, the plaintiff may recover an amount sufficient to indemnify him or her for all loss that is the "natural, reasonable and proximate result" of defendant's wrongful conduct. Cal. Civ. Code S 3336; Myers v. Stephens (1955) 233 Cal.App.2d 104, 117 (measuring damages by lost profits rather than value of property). ...

Excerpt: ... Civil Code section 910 et. seq. (the "Right to Repair Act" or "S8800") specifies various statutory procedures that must be followed before a homeowner may sue a builder for defects in construction of a new residential unit. The statutes provide builders with the absolute right to attempt a repair prior to a homeowner filing a lawsuit. The purpose is to promote prelitigation repairs and avoid litigation costs that result in increased costs of con...

Excerpt: ...l arbitration of plaintiff's claims and to dismiss the class allegations. The parties seem to agree that the Court should (1) compel arbitration of plaintiff's individual claims for violation of the California Labor Code and the UCL and (2) dismiss without prejudice the class claims. They disagree as to whether the non-individual PAGA claim must be dismissed or should be stayed while the arbitration is pending. Defendant's motion to dismiss the n...

Excerpt: ...ould not receive campus-based services. Further, they allege that CBU did not offer appropriate refunds, credits or discounts to plaintiffs and others like them. The FAC alleges causes of action for breach of contract, breach of implied contract, unjust enrichment, and conversion.l Plaintiffs move to certify the class. CBU argues that there is no express contract requiring oncampus, in-person classes and that the implied contract cause of action ...

Excerpt: ... avoid the statute of limitations, the amended complaint must rest on the same general set of facts as the general complaint, refer to the same accident and same injuries as the original complaint, and refer to the same instrumentality as the original complaint." Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 597-598. "Cases applying this relation back rule have made it clear that 'it is the sameness of the facts rather than the righ...

Excerpt: ...pending between the same parties on the same cause of action. Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789. Plea of abatement requires "absolute identity of the parties." ld. at 788. In addition, the causes of action must be the same, such that a judgment in the first action would be a complete bar to the second action. ld. It must be claim preclusion as issue preclusion is not sufficient. Bush v. Superior Court (1992) ...

Excerpt: ...tiffs prevailed on all wage and hour claims. The Judgment indicates that Plaintiffs are the prevailing parties entitled to fees and costs. Attorney fees may be awarded when authorized by statute. (Kirby v. Immoos Fire Protection (2012) 53 Cal.4th 1244, 1248.) Pursuant to Cal Lab. Code S 218.5(a), attorney's fees and costs may be awarded to the prevailing party in any action for the nonpayment of wages. Lab. Code S1194(a) permits an employee to re...

Excerpt: ... S 1281.2.) A proceed-ng to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petiton/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (CRC 3.1330; see also Condee v. Longwood Mgmt. Corp. (2001) 8...

Excerpt: ...nd Mountain Top Quarries, LLC in this action concerning a crusher machine with a purchase price of nearly a million dollars. The SAC alleges causes of action for breach of contract, breach of express warranty, breach of implied warranty and fraud. The motion is based on arguments that the first cause of action is time-barred and barred by the terms of the written warranty and the warranty claims are time-barred. Plaintiffs argue that there is a t...

Excerpt: ...and failed to include their proposed answer as required by the statute. Defendants do not identify the portion of section 473 under which they bring their motion. In their notice, they say the motion is based on "mistake and excusable neglect and that execution of the judgment will be a severe hardship" on them. The points and authorities in support of the motion state that the court is authorized to set aside a default based upon a showing of "m...

Excerpt: ...he arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court acti...

Excerpt: ... business opportunity for Plaintiff by directly competing on a proposal for the Perris Union High School District Project (Project.) On 2/14/20, Plaintiff was awarded the first phase of the Project, and Potter was assigned as the inspector. Thereafter, Potter obtained a business license for Ironwood, registered it with the State, and resigned his position with Plaintiff. On 9/23/20, Potter submitted a proposal for Ironwood, which was chosen for t...

Excerpt: ...e accountants concealed the fact of the controlling members' failure to make promised capital contributions to the business. On December 07, 2022, plaintiffs filed their operative First Amended Complaint in this action, asserting direct and derivative claims, alleging the following causes of action: (1) breach of fiduciary duty, (2) accounting malpractice, (3) fraud (intentional misrepresentation), (4) fraud (concealment), (5) aiding and abetting...

Excerpt: ...f plaintiff's claims in both cases and to dismiss the non-individual portion of the PAGA claim. The principles governing petitions to compel arbitration are well established. Public policy favors contractual arbitration as a means of resolving disputes. Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 342. Arbitration of disputes is fawred and ""when there is doubt as to the meaning and construction of an agreement for mediation a...

Excerpt: ... governing petitions to compel arbitration are well established. Public policy fawrs contractual arbitration as a means of resolving disputes. Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 342. Arbitration of disputes is favored and " "when there is doubt as to the meaning and constructon of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes." Bono v. David (2007) 147 Cal. A...

Excerpt: ...ral Act, California Labor Code section 2598. Defendants move to compel arbitration based on an agreement between Plaintiff and Employee Force Provider, which they assert also applies to Hot Topic, Inc. Plaintiff argues that Defendants have not established a valid, enforceable arbitration agreement, that the agreement should not apply to claims that arose before it was signed and that the PAGA claim should not be divided into individual and nan-in...

Excerpt: ... uncertain, and fail to state sufficient facts to support the claims. Claim preclusion prevents relitgation of the same cause of action in a second suit between the same parties or parties in privity with them. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896. Thus, if a plaintiff prevails in an action, "the cause is merged into the judgment and may not be asserted in a subsequent lawsuit." Ibid. A judgment in the defendants' favor bars f...

Excerpt: ... on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect .... The court may likewise, its discretion, after notice to the adverse party, allow upon any terms as may be just, an amendment to any pleading or proceeding in other particulars." In the light of the policy favoring resolution of a...

Excerpt: ...g for Pineda above. Plaintiff says she does not recall signing the arbitration agreement less than two years ago when she started work. Defendant's CEO authenticates the agreement and attaches a copy. Plaintiff incorrectly argues that this is insufficient. The moving party needs only to allege the existence of an agreement, and once they have done so the burden shifts to the responding party to prove the falsity of the purported agreement. Condee...

Excerpt: ...ors contractual arbitration as a means of resolving disputes. Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 342. A petition to compel arbitration is a suit in equity seeking specific performance of an arbitration agreement. Hotels Nevada, LLC v. Los Angeles Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 347. Secton 1281.2 provides that "[Oln petition of a party to an arbitration agreement alleging the existence of a written a...

Excerpt: ...y sought. "California has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place the cart before the horse." Williams, supra, 3 Cal.5th at 551. "That the eventual proper scope of a putative representative achon is as yet uncertain is no obstacle to discovery; a party may proceed with interrogatories and other discovery methods precisely in or...

Excerpt: ...lodestar enhancement. They argue costs are unreasonable. Decline to rule on plaintiff's evidentiary objections because the evidence was not the basis of the Court's ruling. Grant motion; award attorney fees of The rates charged are reasonable, but there was no need for the number of attorneys who billed time to this case to have worked on the case and this almost certainly resulted in unnecessary time being spent. The Court declines to apply a mu...

Excerpt: ... the complaint, stipulated order and the first amended complaint as requested by Staffmark. The Court takes judicial notice of its rulings in Alfaro and Cezarez, which, it notes, involves different parties and facts and are not binding in this case. As to the unpublished appellate decision in Seifu v. Lyft (2022) 2021 WL 2705285, the request is granted. Plaintiff argues that the arbitration agreement with Staffmark is unconscionable. The doctrine...

Excerpt: ..., 2023. After repeatedly attempting to serve Higuchi, service was completed on January 4, even though Higuchi stated to the process server "I'm not going to take the subpoena, so you can just go away, I'm not taking it." Of course, this is not a lawful option, and when the process server told Higuchi he was served and slipped the subpoena under his door, service was complete. Higuchi did not appear for the deposition and plaintiff moves to compel...

Excerpt: ...y attempting to serve Higuchi, service was completed on January 4, even though Higuchi stated to the process server "I'm not going to take the subpoena, so you can just go away, I'm not taking it." Of course, this is not a lawful option, and when the process server told Higuchi he was served and slip#d the under his door, service was complete. Higuchi did not appear for the deposition and plaintiff moves to compel his attendance and requests sanc...

Excerpt: ...12955(c)(6). The agreement provides that the arbitrator can award attorneys' fees and costs to the prevailing party as allowed by law. (Arbitration Agreement, '1 6.) As such, a prevailing party in a FEHA claim can obtain attorney's fees under the arbitration agreement. unconscionability has both procedural and substantive elements. Both are necessary for an agreement to be found unconscionable. Armendariz v. Foundation Health Psychcare Services, ...

Excerpt: ...service bulletins, which make the second cause of action uncertain. To be uncertain, the FAC would have to be so unclear as to make it so that defendant could not reasonably determine what issues must be admitted or denied or what claims are asserted against it. Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 516. The FAC is not so uncertain, so the demurrer on this basis is overruled. A duty to disclose arises under four circumst...

Excerpt: ... legal right to park on private property without the property owner's consent. The Bane Act, California Civil Code section 52.1(b), provides: "If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Consttution or laws of this ...

Excerpt: ...rder requiring that, pursuant to California Code of Civil Procedure section 2030.090, she be required to disclose her identity and respond to this interrogatory "only on specified terms and conditions," namely that defendants and their owners, representatives, agents, and employees be prohibited from harassing or contacting plaintiff and her family members (other than through plaintiff's counsel) during the pendency of this litigation. Plaintiff ...

Excerpt: ... Agreement. The Court declines to rule on defendant's objection because the matters to which objection is made are not material to the analysis and decision on the motion. Objections not ruled upon by the trial court are presumed overruled and preserved for appellate review. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [summary judgment motions].) The Court takes judicial notice of Page 4 of 4 the matters requested but notes that this doe...

Excerpt: ... the default and the order granting terminating sanctions. They claim that plaintiff did not give them proper notice of the moton and that the order for terminating sanctions was obtained through intrinsic fraud. Further, they assert that they now have completed the discovery response and will serve them. In general, "[t]he trial court has broad discretion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that ...

Excerpt: ...collision at issue in this case pursuant to California Vehicle Code sections 17004 and 17004.7, and California Government Code section 815.2(b), because prior to the date of the collision, the City had adopted, promulgated, and trained upon a pursuit policy that satisfies the requirements found in section 17004.7, and Offcer Stokes was in compliance with the training requirements thereto. According to defendants, Officer Stokes was in actve pursu...

Excerpt: ..., defendant moved for judgment on the pleadings and the Court granted the moton with 20 days leave to amend. The FAC was filed and defendant again moves for judgment on the pleadings. Defendant contends that the vehicle was a used vehicle, so it is entitled to judgment on the three causes of action under the Act, and that the fourth cause of action still fails to sufficiently allege fraudulent concealment. Plaintiffs argue that the Court should n...

Excerpt: ...-complaint. Generally, the court generally will not consider the validity of the proposed pleading. Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047. After the amendment is permitted, the opposing party has the opportunity to attack the validity of the amended pleading. ld. at 1048. It is only where the proposed amendment is deficient as a matter of law, and there is no cure for the deficiency, where the court may consider and ...

Excerpt: ...bmitted by plaintiff. Objections 1 and 2 to plaintiff's declaration are sustained. Objections 1 to 15 to the Ziernicki declaration are sustained because the opinions lack foundation, are speculative and the expert fails to disclose the basis of the opinion. The court declines to rule on the remaining objections because they are not material to the disposition of the motion. Cal. Civ. Proc. Code S 437c(q). The elements of strict products liability...

Excerpt: ...ore Defendants had a chance to retain counsel. Defendants assert that despite explaining their mistakes, plaintiff refused to stipulate to set aside the default. Defendants argue that there is no prejudice to plaintiff in granting this motion; that there was minimal delay in filing this motion; and, that if it is not granted, they face a $1.46 million judgment without being able to defend themselves on the merits. Plaintiff opposes the motion arg...

Excerpt: ...ond Amended Complaint (the operative complaint), filed on July 26, 2021, against Life Care Centers of America, Inc. dba Life Care Center of Menifee; Roger Groves, KND Development 54, LLC dba Kindred Hospital of Riverside ("Kindred Riverside"); Kindred Healthcare Operating, LLC ("KHO"); Silverscreen Healthcare, Ind. Dba Asistencia Villa Rehabilitation and Care Center; Renew Health Consulting Services, LLC; Crystal Solorzano; Shawn Stallworth, a No...

Excerpt: ...sputed facts show they did not breach any duty owed to Cano (the first cause of action for negligence) and did not make any material misrepresentations and further that Cano's failure to read the insurance policy makes his reliance on any alleged misrepresentations unreasonable as a matter of law. Take judicial notice as requested by moving parties. Deny motion for summary judgment/adjudication. Cano or his assignee is not seeking to recover agai...

Excerpt: ...party bears the burden of proving the existence of a valid arbitration agreement, which can be met by attaching a copy of the agreement. Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842. The burden then shifts to the opposing party to prove any defense. Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2015) 55 Cal.4th 223, 236. “In these summary proceedings, the trial court sits as a trier of fact, weighi...

Excerpt: ...lier. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. The burden is comparable to that of a party seeking a new trial on the ground of newly discovered evidence; that is, the information must be such that the moving party could not with reasonable diligence have discovered or produced it at trial. New York Times Co. v. Sup. Ct. (2005) 135 Cal.App.4th 206, 212–13. The party seeking reconsideration “shall state by affidavit what applica...

Excerpt: ...d Titus v. Columbia Riverside, Inc., et al.; CVRI 2200690.) Plaintiff argues that there is no basis to stay or abate the present action; that it should proceed until one of the other actions is resolved. A special demurrer under California Code of Civil Procedure section 430.10(c) lies where “there is another action pending between the same parties on the same cause of action.” Where a demurrer is sustained on the ground of another action pen...

Excerpt: ...whether counsel is aware of any class, representative or other collective action in any other court or jurisdiction that asserts similar claims to those in this case. CMO ¶ G(3)(b). 3. Settlement agreement provides for cy pres distribution if uncashed checks total less than $20,000. Parties selected Childrens' Advocacy Institute, a non-profit charity that advocates for children. However, the motion does not “explain the reason for choosing the...

Excerpt: ... is required, without alleging and proving that he or she was a duly licensed contractor at all times during the performance of the act or contract. Cal. Bus. & Prof. Code §7031. Persons engaged in business or acting in capacity of contractor cannot maintain an action in both “law or equity” to collect for compensation for services requiring license without showing that he or she was duly licensed when the services were performed. Contractor...

Excerpt: ... complaint as requested by Nissan North America. Plaintiffs' objection to the Retail Installment Sales Contract is overruled. On a motion to compel arbitration, the moving party is only required to allege the existence of the agreement and to attach a copy of it. Cal. R. of Ct. 3.1330, Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218-19. This shifts the burden to the opposing party to demonstrate the falsity of the purported agreemen...

Excerpt: ...ld be entitled to records dating back to April 6, 2019 instead of July 31, 2019 (one year from the filing of the complaint). (The parties appear to agree that the PAGA period is May 19, 2019 through the present.) Plaintiff further argues that the disagreement over the correct time period goes to the merits of the claims, which should not preclude an order requiring defendant to comply with the discovery demands. Plaintiff further seeks an order c...

Excerpt: ...actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” In the present case, there is no dispute that Plaintiffs are the prevailing parties in the action and are entitled to reasonable attorney fees. Thus, the only question to be determined by this motion is the amount of the award. The California Supreme Court has indicated that attorney fe...

Excerpt: ...t by concealment of facts. Defendant moves to compel arbitration based upon the provisions of the Retail Installment Sales Contract under which plaintiffs purchased the vehicle. Defendant argues that it is a third‐ party beneficiary of the contract and relies on the Felisilda decision that compelled arbitration. In opposition, plaintiff argues that Felisilda should be distinguished because in that case the selling dealership was a party and sou...

Excerpt: ...urther, its scope of work did not include removal of the beige cabinet owned by Eastern Municipal Water District. Plaintiffs ask the court to deny the motion because Canyon Springs did not provide the entire public works contract and because the completed and accepted doctrine has been rejected by the California Supreme Court. The first cause of action is for negligence. The elements of such a cause of action are a duty of care, breach of that du...

Excerpt: ...laintiff cites no authority for overruling the demurrer. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896. Thus, if a plaintiff prevails in an action, “the cause is merged into the judgment and may not be asserted in a subsequent lawsuit.” Ibid. A judgment in the defendants' fa...

Excerpt: ...ant responded by stating “responding party will fully comply and produce the surveillance video and incident report.” Following the response, defendant informed plaintiff that the actual video was destroyed as part of routine procedure, but produced a video of the surveillance video taken using a cellphone. Plaintiff argues that the video produced is not usable and that the original video is in the possession of Cal‐OSHA and that defendant ...

Excerpt: ...lleges causes of action for negligence, premises liability, negligent undertaking, negligent hiring, supervision or retention, gross negligence and loss of consortium based upon an attack against plaintiffs by defendant Graham Loper with a baseball bat he took from products on display at a Walmart store in San Jacinto. Plaintiffs combined their opposition to the motion by Walmart with their opposition to the companion motion by Walmart Claims Ser...

Excerpt: ...y do not specify the work performed, and the fifth cause of action is barred because declaratory relief is unnecessary. Overrule as to the first cause of action; the cross‐complaint alleges that the parties entered into a written contract in September 2017 to perform reconstruction work at plaintiffs' residence, that plaintiffs were to pay charges not covered by their insurer, that plaintiffs prevented defendant from completing the work and wha...

Excerpt: ...of express written warranty and breach of implied warranty. Defendant General Motors moves for summary judgment, arguing that plaintiffs' warranty claims are barred because the Act does not apply to purchases of used vehicles, relying on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022. Defendant also relies on Nunez v. FCA US, LLC (2021) 61 Cal.App.5th 385. Plaintiffs argue that Rodriguez is not binding because th...

Excerpt: ...ority for overruling the demurrer. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896. Thus, if a plaintiff prevails in an action, “the cause is merged into the judgment and may not be asserted in a subsequent lawsuit.” Ibid. A judgment in the defendants' favor bars further litig...

Excerpt: ...efendants”) arguing that it is overbroad. They contend that the only medical records that should be released are those related to the issues in controversy. According to plaintiffs, the only physical injuries tendered in controversy in this matter are: (1) pressure ulcers that decedent Floyd Stallworth had from January 2020 to February 2020; (2) the April 2020 fall that resulted in a hematoma to the left side of decedent's head; and (3) the fec...

Excerpt: ... Phillip John Sutro was injured, show that the GE defendants were aware of dangers relating to Omniscan. Defendants contend that the US labels have similar warnings. Take judicial notice of the content of FDA required labels for Omniscan dated November 2014, September 2007 and October 2019. This is not taking judicial notice of the truth of the facts stated but of the content of the labels. The issue on each cause of action is whether the GE defe...

Excerpt: .... In opposition, plaintiffs argue that Felisilda should be distinguished because in that case the selling dealership was a party and sought to enforce the arbitration provision. Plaintiffs also argue that the arbitration provision is unconscionable because it deprives plaintiffs of discovery rights. Further, even if arbitration might have been appropriate, plaintiffs argue that defendant waived its right to arbitration by participating in the lit...

Excerpt: ... discrimination because the evidence shows that she was unable to perform essential functions of a CO. Defendant argues that it placed plaintiff on unpaid leave of absence for a legitimate, nondiscriminatory reason, namely to maintain plaintiff's employment while she remains unable to work. Defendant argues that plaintiff cannot show a failure to accommodate or engage in the good faith interactive process because it offered accommodations and rou...

Excerpt: ...ect to the litigation privilege. Lazzara argues that the motion is untimely, filed more than 60 days after the original cross‐complaint. Lazzara further argues that the cases on which Lindberg relies are distinguishable and inapplicable. Finally, Lazzara argues that she has shown probability of success on the merits. The motion is timely because it is brought in response to an amended cross‐complaint and is based on an allegation that was not...

Excerpt: ...Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109. “The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decision or awards relating to the same controversy, and preventing vexatious litigation and multiplicity of suits” and “to protect the rights of Courts of co‐ordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the admini...

Excerpt: ...913, 917. Drill Tech alleges ERSI negligently performed its services causing Plaintiff's damages, thereby causing Drill Tech to incur attorney's fees, litigation costs, contractors' fees, etc. (Drill Tech XC, ¶¶ 115‐ 118.) Drill Tech fails to allege ERSI owed a duty of care to Drill Tech or that ERSI's alleged negligence caused injury to Drill Tech. Notably, the crux of Drill Tech's cross‐complaint against all of the cross‐defendants, inc...

Excerpt: ...ince Owens and the arbitration agreement). Although defendant seeks judicial notice of documents filed in the related action, those documents are not particularly relevant to this motion. There are also no judicially noticeable facts in any of the documents that is relevant to this motion. Judicial admissions and admitted facts by plaintiff in her declaration relate only to the class action waiver with no mention of any waiver of PAGA claims. (RJ...

Excerpt: ...es to stay this action because this case duplicates the allegations made in a PAGA case pending in Los Angeles County. Plaintiff argues that defendant waived the jurisdiction argument by not bringing it by demurrer or answer, that the jurisdictional argument Page 3 of 4 does not apply to PAGA cases in any event and that plaintiff's claims are different from those made in the Los Angeles litigation. Overrule objections to the Slowik declaration, w...

Excerpt: ...s part of his earlier workers' compensation settlement with DISH.1 The motion is supported by (1) Memorandum of Points and Authorities; (2) Separate Statement of Undisputed Material Facts; (3) Declaration of Michael Y. Hsueh; (4) Declaration of Judy Barrett; (5) Declaration of Shani Gruber; and (6) Request for Judicial Notice. Plaintiff opposes the motion, arguing that the motion fails because (1) the only legal entity identified in the purported...

Excerpt: ...te conclusions, hearsay, irrelevant and prejudicial, citing provisions of the California Evidence Code. It is hard to believe that counsel honestly believes these objections can be made to anything other than a declaration and it appears that the “objection” to all of the papers is made in bad faith and for the purpose of delay and harassing plaintiff. Leave to amend is liberally granted. “The policy favoring amendment is so strong that it ...

Excerpt: ...d by somehow citing Horwich as authority supporting his position. Horwich does not support defendant and only supports plaintiff's position. (This is a recurring problem in the motion; Page 4 of 4 it turns out the cases do not actually say what National Marne says they say.) The reply cites Anaya v. Superior Court (2002) 96 Cal.App.4th 136 as if it helps, but it does not; in that case the holding was that the city could not use California Civil C...

Excerpt: ...unilaterally refused to produce further written responses and responsive documents in the format requested. Plaintiff seeks monetary sanctions in the amount of $4,560.00. Defendant opposes the motion arguing that plaintiff cannot force defendant to produce private, unrelated medical documents of patients because she has failed to establish good cause or any compelling need for the documents; that the information plaintiff is seeking is not releva...

Excerpt: ...the memorandum of costs after issuance of the remittitur or by a noticed motion under section1033.5(c)(5), whereas a request for attorney fees authorized by contract must be made by a noticed motion, as plaintiff does here. Plaintiff argues he is entitled to attorney fees for the same reason he was entitled to attorney fees in the trial court – the deed of trust. In any action on a contract where the contract specifically provides attorney fees...

Excerpt: ...egating an essential element of plaintiff's cause of action; (2) showing a complete defense; or (3) showing that plaintiff does not possess and cannot reasonably obtain needed evidence. Cal. Civ. Proc. Code §437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. When a defendant has met her burden, it then shifts to plaintiff to show that a triable issue of fact exists. “It is now well established that California law requires lan...

Excerpt: ...et these requirements. Although the Court will take judicial notice of the various decisions of other trial courts, it notes that they have no precedential authority. The individual arbitration agreement plaintiff signed expressly excludes employees covered by a collective bargaining agreement “unless otherwise agreed to by such employees.” Plaintiff is covered by a CBA and there is no evidence that plaintiff otherwise agreed to arbitration. ...

Excerpt: ...6, “a plaintiff does not need to show that the employer's nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 715‐16.) RI argues t...

Excerpt: ... first position was not taken as a result of ignorance, fraud or mistake. Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 598. Plaintiff previously filed a class and individual wage and hour action (CVRI 2102708). She specifically stipulated to dismiss the claims, on the grounds that “Plaintiff is barred from pursing the Class Action Allegations and Individual Claims in this action based on the parties' arbitration agree...

Excerpt: ...lass representative, however, does not justify the denial of the class certification motion. Instead, the trial court must allow Plaintiffs an opportunity to amend their complaint to name a suitable class representative.” Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 999. This is what the court did when it granted leave to amend at the last hearing. Finally, California Code of Civil Procedure section 473(a) provides that the court ...