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 ...