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 ...

Excerpt: ...ollisions occurring at or near the time of the subject accident, and the discovery conducted and the depositions taken to date, it is believed that Decedent was riding his Yamaha motorcycle in the HOV lane of the westbound SR‐60 freeway when, some distance ahead, a Volkswagen Passat driven by Defendant and Cross‐Defendant center median of the freeway and collided with a metal sign and electronic arrow board; as Mayola's vehicle started to spi...

Excerpt: ...aste Services, LLC. It appears that the parties have agreed to add them to the case, but as yet no stipulation to add them to the action has been presented. 2. Unclear if the parties are referring to the CMO entered in this case as the declarations refer to the wrong portions of the CMO (and the order is different than the CMO, which makes tracking difficult). 3. Although an average payout of $995.68 is stated, there is no range provided. 4. Coun...

Excerpt: ...ased on the following allegations: “On or about December 2021 CRAIG E. LINDBERG, Cross‐Defendant MICHAEL CLARK's father, also did not want his son with a criminal past and present now to be living on the streets.” (FACC, ¶ 20.) “According to the California State Bar records, Cross‐Defendant CRAIG E. LINDBERG is employed as legal counsel for The Federal Express Corporation, 2601 Main Street, Suite 340 located in Irvine, CA 92614‐4209,...

Excerpt: ...ocuments as requested by defendants. The Court will consider the untimely opposition because the defendants filed a substantive reply to the opposition, which waives any defect or irregularity in the filing and service of the opposition. Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The recorded documents show that defendant Rosa Ramirez is not a proper defendant. Although plaintiffs argue that she “owned and managed” the property, the rec...

Excerpt: ...on seeks to preclude expert testimony on the issue of severance damages insofar as it is based upon a determination that RRM's remainder property does not include the South Pit Expansion. The determination of just compensation is measured by what the owner has lost rather than by what the condemner has gained. County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, 123. Where, as in the present case, the proceeding involves condemnation of an ea...

Excerpt: ... video is in the possession of Cal‐OSHA and that defendant should be compelled to obtain a copy from Cal‐ OSHA. Defendant argues it produced the video in its possession and cannot be compelled to produce a better version. Defendant also argues that the version in the possession of Cal‐OSHA is not within its possession, custody, or control, and, moreover, the version in the possession of CalOSHA is likely the same video already produced. The...

Excerpt: ...s recorded on the subject property. It contends the complaint does not state a real property claim as the property was never owned, ceased or possessed by plaintiff. The trust further asserts that plaintiff cannot demonstrate the probable validity of his claims. The trust requests that should the Court find plaintiff can meet his burden of showing probable validity, the is pendens be expunged upon it posting an undertaking of $5,000. In the alter...

Excerpt: ...anic's lien because it properly provided preliminary notice to defendant University Campus Hotel Fund, the owner of the property, within 90 days of commencing work on the project, timely recorded its mechanic's lien, and filed the present action for foreclose on the mechanic's lien within 90 days of completing the work. Defendant's opposition argues the mechanic's lien was not timely recorded since it should have been recorded in October 2020 150...

Excerpt: ...irmative defenses. As to the sixth an eleventh affirmative defenses, the sixth appears is nothing more than a denial of the allegations of the complaint, not a new matter. Similarly, the eleventh affirmative defense is not an affirmative defense but is in essence a challenge to the sufficiency of the complaint. This does not consist of new matter, which is grounds for avoiding the complaint even if the allegations were true. Cal. Civ. Proc. Code ...

Excerpt: ... Viking River Cruises, Inc. v. Moriana (2022) 142 S. Ct. 1906, defendant's argument is without merit. A wholesale waiver of a right to bring a PAGA representative claim as it exists in the subject arbitration agreement, is still recognized as unenforceable. See Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384. However, any individual claims may be severed and subject to arbitration. Viking River, while holding that the n...

Excerpt: ...p, and eventually struck plaintiff's vehicle head on. A motion to strike is the proper vehicle to attack a claim for punitive damages. Cal. Civ. Proc. Code §§ 435‐436; Truman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63. A plaintiff may recover exemplary or punitive damages where it is proven that “the defendant has been guilty of oppression, fraud or malice.” Cal. Civ. Code § 3294(a). “Not only must there be ...

Excerpt: ...” Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368, superseded by statute on other grounds in Lee v. Wells Fargo Bank (2001) 88 Cal. App. 4th 1187. Defendants argue that they are entitled to costs associated with the non‐FEHA claims, specifically, plaintiff's claim for retaliation under California Labor Code section 98.6. The exception to the mandatory award of costs under California Government Code section 12965(b) “implements a clear legisla...

Excerpt: ...nd, third and fourth causes of action. It fails to specify, by reference to exhibit, title page and line numbers, each material fact in support of the motion. Cal. R. of Ct., Rule 3.1350(d)(3). Instead, it leaves it to the Court to try to find supporting evidence. “Overly general references to supporting evidence, of course, may place an undue burden on busy trial courts . . . and need not be tolerated.” Parkview Villas Assn., Inc. v. State F...

Excerpt: ...shall be governed by the Federal Arbitration Act…[and]…any and all employment‐related disputes, claims, or controversies” are subject to binding arbitration. (Redd decl., Exhibit 1, pg. 1.) The Agreement also provides that “all claims brought under this binding arbitration agreement shall be brought in the individual capacity of the employee or the company. No dispute may be brought, heard or arbitrated as a class, collective, or repres...

Excerpt: ...cts alleged against her at all. She also argues that even if Saporito were to amend the cross‐complaint to allege a duty of care based on tort, he cannot create indemnification claims based on tort when the underlying claims arise out of contract. Castronuovo argues that the causes of action in the cross‐ complaint are barred by the economic loss rule. In general, the economic loss rule bars tort claims that “merely restate contractual obli...

Excerpt: ...sues. See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6; Appel v. Superior Court (2013) 214 Cal.App.4th 329, 342, fn. 6. A demurrer based on a statute of limitations defense must clearly and affirmatively show that the claim is barred. Lockley v. Law Office of Cantrell, Green, Kekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881. “It is not sufficient that the complaint might be barred.” Roman v. ...

Excerpt: ...ed at least three employees to resign. Plaintiff argues that defendant should have sought a privacy notice before it provided contact information to plaintiff's counsel and that this is defendant's problem, not plaintiff's problem. Plaintiff does not oppose a protective order that limits dissemination of information already provided. The Court notes that the CMO issued May 25, 2021 provides in part: The discovery stay is vacated as to interrogato...

Excerpt: ...sues. See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6; Appel v. Superior Court (2013) 214 Cal.App.4th 329, 342, fn. 6. A demurrer based on a statute of limitations defense must clearly and affirmatively show that the claim is barred. Lockley v. Law Office of Cantrell, Green, Kekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881. “It is not sufficient that the complaint might be barred.” Roman v. ...

Excerpt: ... by all parties, plaintiff's counsel found that a term that plaintiff wanted to include was not set forth, voided the agreement and defendants refused to sign a revised agreement that included the term. Section 664.6 authorizes the court to enter judgment according to an agreement stated orally before the court, or in writing outside the presence of the court, for settlement of the case pursuant to the settlement agreement. A court has discretion...

Excerpt: ...void because Thomas cannot fulfill the contract. California follows the “American Rule” regarding entitlement to attorney's fees, whereby each party bears its own attorney's fees unless such fees are expressly provided for by statute, or are included as part of the terms of a contract. Cal. Civ. Proc. Code § 1021; Reynolds Metal Co. vs. Alperson (1979) 25 Cal. 3d 124, 127. Attorney's fees as an allowable cost item are governed by California ...

Excerpt: ...tes a cause of action. Defendant argues that judicially noticeable facts show that the conditions precedent to the closing of escrow did not occur. Plaintiff responds that the agreements and addendums make it clear that the condition to expunge the lis pendens was seller's obligation, which would have allowed buyer to terminate if it chose to do so. The condition about pending litigation is for plaintiff's benefit and it may waive it. Further, th...

Excerpt: ... Inc. v. Moriana 142 S. Ct. 1906 (2022), the individual PAGA claims that are within the scope of the claims covered by the arbitration agreement can be severed from the non‐individual claims and be compelled to arbitration. In Viking River Cruises, Inc., the Supreme Court held that an arbitration agreement between a former employer and employee that purportedly waived the employee's rights to bring PAGA representative claims was invalid insofar...

Excerpt: ...y said that “her mom would purchase a home for her and the plaintiff” is insufficient. Defendants also argue that the claim against Audrey fails because she claims no property interest. The demurrer contends that Audrey does not allege an ownership interest in the first cause of action, but it alleges that Audrey claims a half ownership in the property (Complaint ¶¶s 12‐14, 38, 49‐51, 54 & 56). Similarly, defendants' argument that the c...

Excerpt: ...is based upon a determination that RRM's remainder property does not include the South Pit Expansion. The determination of just compensation is measured by what the owner has lost rather than by what the condemner has gained. County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, 123. Where, as in the present case, the proceeding involves condemnation of an easement and the underlying fee retains some value, compensation consists of the decreas...

Excerpt: ...mbraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) “If so, the proceedings are stayed; if not, the proceedings are permitted.” Betz v. Pankow (1993) 16 Cal.App.4th 931, 938. “The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself,...

Excerpt: ...§§ 1194, 1197; Flowers v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal.App.4th 66, 74. The applicable wage order, Wage Order No. 4‐ 2001, defines “employee” as “any person employed by an employer.” 3 Cal. Code Regs, tit. 8, § 11040(2)(E). “Employer” is defined as “any person . . . who directly or indirectly, or through an agent or any other person, employs or exercise control over the wages, hours, or...

Excerpt: ...tition to compel arbitration unless it finds either: no written agreement to arbitrate exists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. Cal. Civ. Proc. Code § 1281.2. A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract...

Excerpt: ...g party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. California courts liberally construe the term, “on a contract,” as it is used in section 1717. Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1168. In determining whether an action is “on the c...

Excerpt: ...mination that RRM's remainder property does not include the South Pit Expansion. The determination of just compensation is measured by what the owner has lost rather than by what the condemner has gained. County of San Diego v. Bressi (1986) 184 Cal.App.3d 112, 123. Where, as in the present case, the proceeding involves condemnation of an easement and the underlying fee retains some value, compensation consists of the decrease in market value due...

Excerpt: ...r responses to any of the interrogatories that were supplemented so this motion is not moot. UHS‐Corona provided information about hiring, termination and voluntary resignation for registered nurses working the L&D department from 2014 to 2017, but plaintiff now seeks the information for all RNs in the entire hospital for 2014 to 2018. (Requests 71, 72, 75, 78, 79, 82, 83, 86, 87, 90‐93, 98‐101, 106 ‐109, 114‐117, 122‐125) There is no...

Excerpt: ...r warranty. Cal. Civ. Code §1793.22(e)(3). Thus, the definition would appear to apply to the vehicle as represented by plaintiffs. Accordingly, the motion is granted with 20 days' leave to amend as to the causes of action based on the Act. To be actionable, the defendant must have been under a duty to disclose facts to plaintiff. This duty can arise from a fiduciary relationship, when the defendant had exclusive knowledge of material facts not k...

Excerpt: ...bitration agreement. Defendants argue that all of plaintiff's claims are subject to the Agreement, which defines claims broadly. Defendants argue that the Agreement is not substantively unconscionable because it provides all relief available, allows for adequate discovery and requires the employer to pay the arbitration fees. Defendants argue that the Agreement is not procedurally unconscionable. Defendants argue that the refusal to arbitrate was...

Excerpt: ...use the Act was not enacted until March 3, 2022, the conduct involved in this case occurred in May 2021 (Complaint, ¶ 9), and the Act is not retroactive, it does not apply to this case. Moreno Valley seeks to compel arbitration under an arbitration agreement that was signed by Plaintiff's husband. Plaintiff argues that Moreno Valley has failed to provide evidence that her husband had authority to bind Plaintiff to said agreements. Moreno Valley ...

Excerpt: ... employee whose claims are not typical of the agricultural workers. Defendant argues that Uribe is not a proper representative because he only worked sporadically during the class period. Defendant argues that there is no unity of interest because the agricultural workers and clerical workers are subject to different Wage Orders. Defendant argues that there no common issues of fact or law because plaintiffs do not allege overall wage and hour pol...

Excerpt: ...o. vs. Alperson (1979) 25 Cal. 3d 124, 127. Attorney's fees as an allowable cost item are governed by California Code of Civil Procedure section 1033.5(a)(10) and (c)(5), and motions for such fees are governed by California Rules of Court, Rule 3.1702. The court may properly award attorney's fees when a contract provides for the allowance of attorney's fees and suit is instituted to enforce the provisions of the contract: the trial court decides ...

Excerpt: ...lly served with the summons. Instead, the proof of service indicates “Sergio” (a room renter) was served on January 13, 2018. Plaintiff opposes the motion arguing that the motion to quash is untimely as Nunez acknowledges he received the complaint in October of 2021, and failed to file this motion until May 20, 2022, more than six months later. Plaintiff asserts that the section 473(b) motion is also untimely because default was entered on Ma...

Excerpt: ...ndependent contractor, assigned by a staffing agency, Garuda Labs, Inc. and nowhere alleges that she was an employee of Core‐Mark. The complaint must be construed liberally… with a view to substantial justice between the parties.” Cal. Civ. Proc. Code § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639. Leave to amend should be routinely and liberally granted regardless of the defect and a failure to allow amendment to an original c...

Excerpt: ...mmenced, the party asserting the plea in abatement should be granted leave to amend to plead the res judicata effect of the judgment in bar of the subsequent action. … [If] the prior litigation is not determined upon the merits, the trial court should hear and decide the rights of the parties in accordance with the issues presented by the pleadings in the second action.” Branson v. SunDiamond Growers (1994) 24 Cal.App.4th 327, 335 n.2. This a...

Excerpt: ...e has already been too much delay in proceeding with this litigation. Griffithe is admonished that he must follow the rules of court or he may be subject to sanctions. Griffithe argues that the release in the parties' Rescission Agreement bars all of the causes of action. This argument is unpersuasive because the complaint alleges that Renewable did not fulfill its obligations under the agreement. Put simply, the plaintiffs allege that the agreem...

Excerpt: ...ale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104. A plaintiff in a suit for wrongful foreclosure is generally required to show that ...

Excerpt: ...ection 425.13 before asserting a claim for punitive damages. Section 425.13(a) provides that, in an action arising out of the professional negligence of a health care provider, “no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” Section 425.13(a) is not limited to causes of action for “professi...

Excerpt: ...ction arising out of the professional negligence of a health care provider, “no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” Section 425.13(a) is not limited to causes of action for “professional negligence,” but applies to any cause of action “arising out of” professional negligence, ...

Excerpt: ...eges the ultimate facts that he suffered from a disability, his employer knew of his disability, failed to engage in the interactive process and failed to accommodate him, and, instead, retaliated against him with disciplinary action that was unwarranted and then firing him. As to the third cause of action for retaliation, plaintiff alleges that he requested reasonable accommodations for his disability and that instead of providing an accommodati...

Excerpt: ...(2019) 40 Cal.App.5th 555, 559. Since negligent entrustment is alleged, Medina's past driving history is relevant. If Medina has a history of acting in an unsafe manner when operating a vehicle and Stanley knew or should have known about this conduct, it can be held liable for negligent entrustment. As such, Medina's argument that the subpoenas do not seek relevant information has no merit. Medina argues that the subpoenas are overly broad. This ...

Excerpt: ...drawal of “deemed admissions” ordered by a court under section 2033.280(b), as well as admissions expressly made by a party. Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.1 Section 2033.300 is designed to eliminate underserved windfalls obtained through requests for admission and to further the policy favoring resolution of lawsuits on the merits. Therefore, any doubts must be resolved in favor of the party seeking relief. New Albertsons, ...

Excerpt: ...unreasonable risk to others. Ghezavat v. Harris (2019) 40 Cal.App.5th 555, 559. Since negligent entrustment is alleged, Medina's past driving history is relevant. If Medina has a history of acting in an unsafe manner when operating a vehicle and Stanley knew or should have known about this conduct, it can be held liable for negligent entrustment. As such, Medina's argument that the subpoenas do not seek relevant information is incorrect. Medina a...

Excerpt: ...red by the constitutional right of privacy. Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528, disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531 (“Williams”) “[T]he right to privacy protects the individual's reasonable expectation of privacy against a serious invasion.” Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370. It has been said that unlike a privilege, the ...

Excerpt: ...h 20 days' leave to amend as to BMW Financial Services and BMW of Riverside. The third cause of action, for violation of the Consumer Legal Remedies Act, is sustained because plaintiff failed to identify in the First Amended Complaint which section(s) of California Civil Code section 1770(a) was violated. In the opposition papers, subsection (7) is identified. However, stating that the vehicle is one of the finest vehicles in the world is mere pu...

Excerpt: ...itration agreement may enforce its terms; however, the law recognizes an exception where the non‐party is a third‐party beneficiary to the agreement. Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830, 837‐38; see also Jones v. Jacobson (2011) 195 Cal.App.4th 1, 17‐18 (arbitration agreement may be enforced by nonsignatories when the nonsignatory is a third‐party beneficiary of the agreement, and when a preexisting agen...

Excerpt: ...hat is, his exercise of his constitutional right to petition the government and of speech about an issue of public interest and that cross‐complainants cannot establish a probability of success on the merits. O'Connor seeks $14,160 in attorney's fees and costs in bringing the special motion to strike. Cross‐ complainants contend that the statements alleged in the cross‐complaint do not arise from protected activity and that if they were, cr...

Excerpt: ...diced because the trial is not until January 2023. Defendant argues that by statute, jury fees must be paid before the CMC. Defendant argues that plaintiff was aware that jury fees had not been posted and had numerous opportunities to do so. Defendant argues that it will be prejudiced. Defendant argues that there will be prejudice to the Court because the pandemic caused a backlog of cases. A party demanding a jury trial must post jury fees on or...

Excerpt: ...ontract claim fails because there is no longer a contract in existence that can be enforced. They further argue that plaintiff's contentions that defendants' alleged breach automatically extended the Investigation Period and entitled plaintiff to cure its failure to deliver the Approval Notices are contrary to the agreements. Because plaintiff's breach of contract claim fails, defendants argue that plaintiff's requests for specific performance, d...

Excerpt: ...omplaint (FAC) on August 3, 2020. The FAC asserts nine causes of action: (1) Labor Code §§s 510, 1198 (unpaid overtime); (2) Labor Code §§s 226.7 and 512(a) (unpaid meal period premiums); (3) Labor Code § 226.7 (unpaid rest period premiums); (4) Labor Code §§s 1194, 1197, 1197.1 (unpaid minimum wages); (5) Labor Code §§s 201‐203 (final wages not timely paid); (6) Labor Code § 226(a) (inaccurate wage statements); (7) Labor Code §§s 2...

Excerpt: ...hat is, his exercise of his constitutional right to petition the government and of speech about an issue of public interest and that cross‐complainants cannot establish a probability of success on the merits. O'Connor seeks $14,160 in attorney's fees and costs in bringing the special motion to strike. Cross‐ complainants contend that the statements alleged in the cross‐complaint do not arise from protected activity and that if they were, cr...

Excerpt: ...and conferred, and that the parties were unable to resolve the issues. Cal. Civ. Proc. Code § 435.5(a)(3). It seems clear that the parties did not meet and confer regarding the issues raised by the motion to strike. Defendant failed to file a declaration in compliance with section 435.5. Although in his reply defendant asserts that the parties met and conferred on numerous occasions, it appears that those efforts involved discovery issues rather...

Excerpt: ...f action. Plaintiff cites no authority that a party that earlier brought a motion to strike is barred from bringing a motion for judgment on the pleadings. In contrast, a motion for judgment on the pleadings may not be brought on a ground earlier raised in a demurrer (absent a change in the law). Cal. Civ. Proc. Code § 438(g)(1).1 Intentional infliction of emotional distress and reckless infliction of emotional distress are the same cause of act...

Excerpt: ...A statement of any new matter constituting a defense.” Cal. Civ. Proc. Code §431.30(b). A defendant may not claim affirmative relief in the answer. Cal. Civ. Proc. Code §431.30(c). When defendant filed his original answer, he asserted 8 affirmative defenses: (1) failure to state a cause of action; (2) anticipatory repudiation; (3) contributory negligence; (4) failure to mitigate; (5) apportionment; (6) modification; (7) substituted contract; ...

Excerpt: ...11 Cal.3d 924, 929. “At a hearing on a motion to quash, the court must determine whether the party seeking the discovery has made a showing of good cause for the production of said matters and whether the items sought are material and relevant to the case.” M.C.A. v. State of California, (1982) 128 Cal.App.3d 225, 232‐ 33. A right of privacy exists as to a party's confidential financial affairs, even when the information sought is admittedl...

Excerpt: ...apacity as Weidner's agent. Cline v. Atwood (1996) 241 Cal.App.2d 108, 113. Thomas asserts that she is not a party to the rental contract between plaintiff and Weidner; thus, she cannot be personally liable for the causes of action, which are all based on contract; that the declaratory relief claim operates prospectively, but the complaint references only past grievances; and, that the breach of the implied covenant claim is improperly duplicativ...

Excerpt: ...0.5, a medical malpractice claim is subject to the following statute of limitations: “the time for the commencement of an action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” The term “injury” as used in section 340.5 means both a person's physical condition and its negligent cause. Davis v. Ma...

Excerpt: ...which the Court found that plaintiff had waived the right to a jury trial by failing to timely post the fees. However, the Court may “upon just terms” allow a trial by jury despite a waiver. Cal. Civ. Proc. Code § 631(g). Any doubt should be resolved in favor of the party requesting a jury trial. Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703 ‐04 (court should grant relief from waiver “unless . . . granting such ...

Excerpt: ...he court should therefore deem the matters admitted. Alternatively, defendants argue that the objections are all without merit and that the court should therefore compel a further response. Defendants request $2,890 in sanctions. Plaintiff responds that she served code‐compliant responses to the RFAs and that the motion to have matters deemed admitted must therefore be denied. Plaintiff further argues that there is no authority that would allow...

Excerpt: ...t an independent contractor, so at least at this point, the motion is moot as to those categories. Leon agreed to limit categories 10, 14, 16, 20, 26, 30, 32, 34‐35, 42, 45‐47, 49, 51, 53‐54, and 57 to relate to MacArthur only. However, given that the employer is not disputing that it is liable under a theory of respondeat superior, it is unclear why these categories are relevant. In Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1153 the defendan...

Excerpt: ... filed. Section 425.16(b)(1) of the California Code of Civil Procedure requires the court to engage in a two‐step process. First, the court decides whether the moving party has made a threshold showing that the challenged complaint or cause of action is one arising from protected activity. The moving party's burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]'s right of ...

Excerpt: ...n the grounds that the default judgment is void as a matter of law as a result of improper service of summons and complaint. Finally, it seeks relief under section 473.5(a), on the grounds that the service of summons and complaint filed in this action did not result in its actual notice in time to defend. None of these grounds are meritorious and the motion is denied. The court is empowered to relieve a party “upon any terms as may be just…fr...

Excerpt: ...sting pleadings and will proceed on the first cause of action only. California Code of Civil Procedure section 438(h)(4)(A) and (i)(1)(A) provide that if leave to amend a pleading is granted but the party does not amend, the defendant may move for judgment. Further, although Diaz argues that the default has no impact on the assignment of the defaulted defendant's rights to her, she provides literally no authority to support this position. Leave t...

Excerpt: ...he minds as to the purchase price when the purchase agreement was signed; 3) there is no allegation that plaintiff paid/intended to pay the purchase price for the 51% interest; 4) there is no allegation that plaintiff understood that by paying a portion of the purchase price, he obtained any management rights. Moving parties request the court take judicial notice of the following documents: A) 6/25/16 tentative ruling on Chang's petition to compe...

Excerpt: ...pecial motion to strike under the anti‐SLAPP statute, California Code of Civil Procedure section 425.16, contending that the entire complaint and each cause of action arises out of their protected activities and that Hunt cannot demonstrate a probability of success on the merits. The moving parties argue that their protected activity is conduct protected by the First Amendment because they are sued for communications on matters of public intere...

Excerpt: ...hat burden, it shifts to plaintiff to show that a triable issue of material fact exists as to that cause of action or defense thereto. Cal. Civ. Proc. Code §437c(p)(2). The moving party must meet its initial burden regardless of whether the opposing party files counter‐declarations. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Where a defendant fails to meet its...

Excerpt: ...es and Procedures. This agreement explicitly provides for arbitration of this dispute. Further, the agreement expressly covers participating employers, which would include defendant. This leaves plaintiff's argument that the arbitration agreement is unconscionable. Although plaintiff's brief contends that he was required to sign the arbitration agreement to obtain his job, he does not state that in his declaration. Further, the mere fact an adhes...

Excerpt: ...mTrust has met its initial burden as to the breach of contract cause of action. In order to be enforceable, provisions relating to exclusions from coverage must be conspicuous, placed and printed to attract the reader's attention and stated in plain and clear language in ordinary language – something more than simply being unambiguous. Jon Davler, Inc. v. Arch Ins. Co. (2014) 229 Cal.App.4th 1025, 1040; Brown v. Mid‐Century Ins. Co. (2013) 21...

Excerpt: ...a)(2). “A demurrer based on statute of limitations will not lie where the action may be, but is not necessarily barred.” Stueve Bros. Farms v. Berger Kahn (2013) 222 Cal. App. 4th 303,321. The complaint must clearly and affirmatively show, on its face, that the claim is barred. Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881. Generally, the statute of limitations begins to run upon the occurrence...

Excerpt: ...udice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court of Cal. in and for Los Angeles County (1959) 172 Cal.App.2d 527, 530. “[D]iscretion should be exercised liberally in favor of amendments, for judicial policy favor...

Excerpt: ...s inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a mental disability under FEHA.” This does not go as far as defendant argues. Plaintiff is not alleging a mere inability to work under a particular supervisor because that supervisor's standard oversight causes her stress or anxiety, but has alleged list of diagnosed...

Excerpt: ...g to the owner after condemnation is part of a ‘larger parcel': (1) unity of title; (2) contiguity of the parcels; and (3) unity of use.” City of San Diego v. Neumann (1993) 6 Cal.4th 738, 745; see also City of Los Angeles v. Wolfe (1971) 6 Cal.3d 326, 330. Although the question whether condemned property is part of a larger parcel within the meaning of the statute is generally described as a question of law, it also involves issues of fact. ...

Excerpt: ...tend the defendant Griffithe was somehow a direct buyer and seller and if so on what basis. Overrule demurrer to second and third causes of action, which sufficiently alleges alter ego liability on the part of defendant Griffithe. Unjust enrichment requires allegations that the defendant received a benefit from plaintiff and that it would be unjust for the defendant to retain it. Although the complaint does not specifically allege that they paid ...

Excerpt: ...efendants Witkos and Kim argue that the declaration of expert Barcay establishes that they followed the appropriate standard of care in their treatment of plaintiff. Because the claim against Banning Medical Services is based of vicarious liability for the doctors' negligence, if the claim against them fails, then so does the claim against BMS. Plaintiff's opposition asks the court to continue the hearing on the motion under California Code of Ci...

Excerpt: ...omply with the requirement of presenting a written claim to the Executive Officer Cal. Gov't Code § 810, et. seq. Defendant also asserts that this court lacks jurisdiction of plaintiff's claim for declaratory and injunctive relief in that plaintiff improperly asks one superior court judicial officer to reverse the previous procedures, rulings, and orders of another superior court judicial officer in violation of California Code of Civil Procedur...

Excerpt: ...1984) 161 Cal.App.3d 1163, 1171. It may also extend to requests for production of documents where the production of the documents would itself be “testimonial” and incriminatory. United States v. Doe (1984) 465 U.S. 605, 612. In Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, the court held that a defendant in a civil action should not be penalized for asserting his Fifth Amendment rights and should not have to choose between defend...

Excerpt: ...or the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control.”) The California Supreme Court recently clarified the duty analysis, in particular regarding cases involving suicide. Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 217‐218. In Brown, the Court explained that “‘the basic policy of this state set forth by the Legislature in [Civil Code] section 1714…...

Excerpt: ...osition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” The party requesting the continuance need not show that essential evidence does exist, only that it may exist. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34. “To be entitled to a continuance, the party opposing...

Excerpt: ...ing is to deny the motion. First Cause of Action for Negligent Supervision of Students: The first cause of action asserts a claim for negligent supervision of students. Negligence requires a duty, breach of duty, causation, and damages. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. Since School District is a government entity, a statutory basis for tort claims is required. Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457...

Excerpt: ...tending that there has not been sufficient discovery to determine whether the settlement is reasonable and requests a continuance of 120 days to allow discovery. Miranda asserts that his financial condition and involvement were disclosed in response to interrogatories. Defendant SCE filed a separate motion to contest good faith settlement because it has no duty to provide power for streetlights and cannot be liable. It argues discovery is in the ...

Excerpt: ...sixteenth cause of action (false imprisonment). Fourth cause of action: Defendant school district argues that California Education Code sections 49000 and 49001 do not permit a private right of action. In making its argument, defendants rely on Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, which held that sections 49000‐49001 “are clearly prohibitory in effect” and “do not create any mandatory, affirmative dut...

Excerpt: ...however, because in his opposition, plaintiff admits that he signed the arbitration agreement. He argues that although he signed the document, his agreement is void because of fraud in the inducement (or execution, the opposition is unclear). Plaintiff contends that he was told that the arbitration agreement was “nothing big” by a person in HR and refused him time to take the documents home. Fearing the loss of his employment, he signed the a...

Excerpt: ...t she was an employee of defendants, that she told defendants that she was pregnant, that Hernandez was very upset and began to immediately reduce her hours and that as it became increasingly apparent that plaintiff was pregnant, Hernandez reduced her hours more and more. (TAC ¶ 7.) Plaintiff further alleges that on or about 2/2/19, she asked Hernandez why she was the only one with no hours for the week, Hernandez told her there were changes to ...

Excerpt: ... out of protected activity. If the defendant does so, the burden shifts to the plaintiff to show likelihood of success on the merits. Reporting a suspicion of child abuse to CPS falls within the first prong of the anti‐SLAPP statute, California Code of Civil Procedure section 425.16(e)(2). Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569‐1570. Thus, defendant has met its burden. The ...

Excerpt: ...nstance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.” Id. Discovery sanctions are issued to remedy discovery abuse, not to punish the offending party. Id. The sanctions should be proportionate to the offending party's misconduct. Id. “[W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the disc...

Excerpt: ...s essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” The party requesting the continuance need not show that essential evidence does exist, only that it may exist. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34. “To be entitled to a conti...

Excerpt: ...o show that defendant acted in a manner described in California Civil Code section 3294—that defendant intended to cause injury to the plaintiffs or acted with willful disregard for the rights or safety of others. As set forth in Taylor v. Superior Court (1979) 24 Cal. 3d 890, 895‐896, plaintiff must allege facts showing that defendant was award of the probable dangerous consequences of his actions and willfully and deliberately failed to avo...

Excerpt: ... his employer. As to this cause of action, defendants have not demonstrated that it arises out of protected activity. Plaintiff responded to the motion by filing a request for dismissal of anti‐SLAPP and all future filings by defendants. He presented no evidence or argument in opposition to the motion. The Court grants the motion as to causes of action one, two, and four. The court awards sanctions in the amount of $3,070 for reasonable attorne...

Excerpt: ...t show that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077‐1078. The notice of motion must be accompanied by a declaration showing (a) defendant's lack of notice of the action in time to defend; and (b) that such lack “was not caused by his or her avoidance of service or inexcusable neglect.” Code Civ. Proc. §473.5(b); Anasto...

Excerpt: ...(“Song Beverly Act”) does not apply to used vehicles sold by a third‐party used car dealer. Defendant further argues that the 6th cause of action fails because Plaintiff cannot establish the elements of fraud and/or the economic loss rule bars her claim. After the motion was filed, plaintiff dismissed the 5th and 6th causes of action without prejudice. Plaintiff opposes the motion as to the 1st through 4th causes of action, arguing that the...

Excerpt: ...ate. As of the preparation of this tentative ruling, the court received the brief from plaintiffs and cross‐defendants but not from defendant and crosscomplainant Imperial Irrigation District. The original tentative ruling is repeated below for reference. The FAC alleges causes of action for declaratory relief, writ of mandate under CCP § 1085 and breach of contract. Although the Unions frame the declaratory relief claim and motion for summary...

Excerpt: ... law enforcement agency, [2] to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance … if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute….” Cal. Lab. Code § 1102.5(b). Columbia Riverside states that plaintiff fails to show that she engaged in protected activity because the c...

Excerpt: ...overnment or law enforcement agency, [2] to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance … if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute….” Cal. Lab. Code § 1102.5(b). Columbia Riverside states that plaintiff fails to show that she engaged in protected activity b...

Excerpt: ...o disclose on the part of defendant in the absence of a fiduciary relationship. Defendant also argues the complaint is barred by the statute of limitations. Defendant also argues the complaint based on fraud lacks the specificity required. Defendant argues the claim for fraud by omission fails due to uncertainty. The argument should be rejected because the cause of action adequately alleges that GM knew of substantial and hazardous transmission d...

Excerpt: ...all grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification.” Defendants seek reclassification under Walker v. Sup. Ct. (Residential Const. Enterprises) (1991) 53 Cal.3d 257, where the court held that reclassification of an unlimited civil case as a limited civil case is proper if the court determines that plaintiff's claim ...