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: ...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: ...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: ...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...