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...