Excerpt: ...nc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐18; see also Stratford Irrig. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 68 [recorded land documents, not contracts, are the subject of judicial notice on demurrer].) The Court, however, does not accept the truth of any facts within the judicially noticed documents except to the extent such facts are beyond reasonable dispute. (See Poseidon Devel., supra, 152 Cal.App.4t...

Excerpt: ...st 2: Admit that defendant's negligence was not a substantial factor in causing plaintiff's injuries. Request 3: Admit that defendant did not cause the collision that injured plaintiff. Request 4: Admit that plaintiff has no facts to support a contention that defendant's negligence caused her injuries. Plaintiff's single objection to each request was: "Objection. This Request seeks admission of an ultimate fact that is to be d...

Excerpt: ...fendants' counsel is directed to contact Plaintiff's counsel forthwith and advise counsel of Local Rule 1.06 and the Court's tentative ruling procedure. If Defendants' counsel is unable to contact Plaintiff's counsel prior to the hearing, Defendants' counsel shall be available at the hearing, in person or by telephone, in the event Plaintiff's counsel appears without following the procedures set forth in Local Rule 1.06(B). Evidentiary Objections...

Excerpt: ...ants' counsel is directed to contact Plaintiff's counsel forthwith and advise counsel of Local Rule 1.06 and the Court's tentative ruling procedure. If Defendants' counsel is unable to contact Plaintiff's counsel prior to the hearing, Defendants' counsel shall be available at the hearing, in person or by telephone, in the event Plaintiff's counsel appears without following the procedures set forth in Local Rule 1.06(B). Evidentiary Objections Pla...

Excerpt: ...inutes Orders, ROA No. 116) A trial court may, in its discretion, dismiss an action for delay in prosecution under the provisions of California Code of Civil Procedure §§583.410‐583.430, either on its own motion or on the defendant's motion, if it appears appropriate to the court under the circumstances of the case. (Cal. Code Civ. Pro § 583.410(a).) A discretionary dismissal for lack of prosecution must be made in accordance with rules ...

Excerpt: ...ded Cross‐complaint alleges 14 causes of action arising from disputes between the shareholders and directors of M.C.M. Construction, Inc. ("MCM") a privately‐held construction company formed in 1973. The five shareholders are James and Judith Carter, Joey Carter, Jeffrey Carter, plaintiff Harry McGovern, and James Coppini. The Carters allege in their SACC that, between 2007 and 2016, McGovern and former MCM director, James Coppini, ca...

Excerpt: ...aintiff alleges that she suffered injuries and disabilities as a result of a rape by a colleague and Defendants failed to provide her a reasonable accommodation, failed to engage in the interactive process and retaliated against her when they used performance issues as a pretext to terminate her. Defendants issued subpoenas to Plaintiff's subsequent employers (Lundberg Family Farms and Blood Source) and MB Public Affairs, Inc., where she applied ...

Excerpt: ... no later than the date the opposition to the demurrer is due. (CCP § 472(a).) The opposition was due on September 5, 2018 and no stipulation has been presented to the Court. The Court therefore strikes the first amended complaint filed on September 6, 2018, on its own motion. The Clerk is directed to strike the first amended complaint. In this action, Plaintiff alleges that she suffered injuries while attending a concert at the Crest Theatre. S...

Excerpt: ...2 Cal.App.4th 1106, 1117‐18; see also Stratford Irrig. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 68 [recorded land documents, not contracts, are the subject of judicial notice on demurrer].) The Court, however, does not accept the truth of any facts within the judicially noticed documents except to the extent such facts are beyond reasonable dispute. (See Poseidon Devel., supra, 152 Cal.App.4th at 1117‐18; see also Fontenot v. Wells ...

Excerpt: ...f to a Kaiser hospital where he was prescribed Ibuprofen prior to his intake with the Sheriff's Department. (Compl. ¶ 14.) The following day, Plaintiff was in pain and seen by correctional medical staff with the Sheriff's Department. Plaintiff was offered the medication Naproxen for pain by the MD, but Plaintiff declined stating he was allergic to the drug. (Compl. ¶ 15.) Plaintiff was released later that same day. Plaintiff alleges defendants ...

Excerpt: ...ach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadin...

Excerpt: ...37c, subd. (q).) In this personal injury action, plaintiff Debra Ruth Bensema (“Plaintiff”) alleges she was injured after she tripped and fell on a floor mat in Defendant's restaurant. Plaintiff alleges the door mat was defective and created an unsafe walking surface. Plaintiff has alleged a single cause of action for negligence (premises liability) against Defendant. Defendant now moves for summary judgment on the grounds that Plaintiff has ...

Excerpt: ...adjudication, is granted. Defendants' request for judicial notice is granted. In this employment action, Plaintiff Jessica McNary who was a licensed vocational nurse with the UC, alleges FEHA causes of action for failure to accommodate, failure to engage in the interactive process, harassment, retaliation, violation of Labor Code § 1102.5, violation of Health & Safety Code § 1278.5, violation of 42 USC § 1983, failure to prevent harassment/dis...

Excerpt: ...l Center (collectively, “Sutter”) is granted as follows. Plaintiffs allege Defendants engage in the "illegal practice of dumping vulnerable nursing facility residents into hospitals." (Third Amended Complaint (TAC) ¶ 1.) According to Plaintiffs, Defendants "dump" their neediest residents and, to maximize profits, refuse to readmit them. Such a practice allegedly violates state and federal law, which require "facilities to...

Excerpt: ... of the contents therein. This case originates from a motor vehicle accident that occurred on February 3, 2015, in the city of Citrus Heights, California. Plaintiff Bahareh Angela Shivazad and Plaintiff Aidan Moez Ardalan were in a vehicle that was struck by Defendant Cynthia Ann Pelley. At the time, Defendant Pelley was working for Defendant Allstate. Plaintiffs allege that Defendant Pelley was taking a prescribed dosage of Mirapex for “restle...

Excerpt: ...ent of Motor Vehicles (“Respondent”) and operated by one of the Respondent's employee. Following the collision, Petitioner and her insurance agent, Jack Kandola, reached out to DGS. (Laskin Decl. ¶ 5.) Kim Clark, a DGS Risk Analyst, requested information from Petitioner about the accident, and this was provided to DGS. (Laskin Decl. ¶ 5; Clark Decl. ¶ 1.) Six months later, Petitioner was awaiting documentation from her employer to support ...

Excerpt: ...��Plaintiff”) failed to comply with CCP § 1005 by filing an untimely opposition on September 4, 2018, only three days before the hearing on this matter and served the opposition on Defendant that same day by mail. The Court notes Plaintiff argues his opposition was late because he was not served with this motion. However, the proof of service provided with Defendant's motion indicates Plaintiff was served by mail on August 21, 2018. Nonetheles...

Excerpt: ..., (4) Kin Care Discrimination, (5) Wrongful Discharge in Violation of Public Policy, (6) Wage Statement Violations, (7) Failure to Provide Payroll Records Upon Request, (8) Failure to Provide Personnel File Upon Request, and (9) Unfair Competition. See Shimoda Decl., ¶ 4; Exhibit C. At about the same time, plaintiff provided notice to the LWDA and employer concerning the PAGA claims. Plaintiff eventually became authorized to file a civil action ...

Excerpt: ...es' meal and rest period premiums, overtime, and double time rates of pay because it did not properly account for shift differentials in those calculations. The Complaint also alleges that Defendant failed to provide Plaintiff and similarly situated aggrieved employees with legally compliant itemized wage statements showing the full name of the legal entity that was their employer, the accurate total hours they worked each pay period, the app...

Excerpt: ...f action cannot support punitive damages because the fraud claim is insufficiently pled as argued in its demurrer and thus there is no basis for punitive damages. However, since the Court has concluded that the fraud claim was sufficiently pled, the motion to strike punitive damages is must be denied for the same reasons the demurrer was overruled. (See, e.g. Johnson v. Ford Motor Co. (2005) 35 Cal. 4th 1191.) Fraud is a cause of action which pro...

Excerpt: ...ento County Jail, he was treated for injuries allegedly sustained before and after he was arrested. Plaintiff alleges that defendant Candalla, who served as plaintiffs treating nurse through the Sacramento County Correctional Health Services, offered him the medication Naprosyn, even though he told her he was allergic to it. Plaintiff alleges at ¶ 20 of the Complaint that Candalla told him it would take too long to look at his medical records an...

Excerpt: ...section. Plaintiff has named City in the 1st cause of action for Motor Vehicle Negligence, the 3rd Cause of action for Dangerous condition of public property, and the 4th Cause of action for General Negligence based on alleged failure to maintain the traffic lights. “Except as otherwise provided by statute,” a “public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public em...

Excerpt: ...perly removed items from the property and failed to repair damage, failed to clean the carpet and left garbage at the property. Plaintiff seeks to add causes of action for intentional and negligent misrepresentation as a result of Defendants' deposition testimony in May 2018 in which he contends they admitted to altering the condition of the property and removed items between the time the property was listed for sale and the time the contract was...

Excerpt: ... for harassment based on gender and mental disability and IIED against Defendant Thomas. Plaintiff was hired as a lab technician in November 2013. Defendant Thomas became his supervisor in February 2014. Plaintiff was promoted to lead lab technician/foreman a position he held until December 2015 when he was demoted back to lab technician as a result of a December 4, 4015 meeting regarding a corrective action he received after accumulating points ...

Excerpt: ... private nuisance, constructive eviction, NIED, negligence and violation of Business & Professions Code § 17200. The action arises from Plaintiffs' tenancy at the Palms Apartment. They allege that their unit suffered from water intrusion which allowed mold to grow and which they contend breached the warranty of habitability. The FAC contained causes of action for negligence per se, constructive eviction, nuisance, violation of Business & Profess...

Excerpt: ...ts Randy David Barnes, Jeri F. Barnes, and Central Valley CDL Services, LLC (collectively, “Defendants”): the 1st for conversion of assets from Folsom Ready Mix ‐ Anderson, the 2nd for conversion of assets from Folsom Ready Mix, Inc., the 3rd for breach of fiduciary duty, the 4th for negligence, the 5th for constructive fraud, the 6th for conspiracy to defraud, the 7th for unjust enrichment, the 8th for imposition of constructive trust, the...

Excerpt: ...to amend in part as set forth below. Defendant's request for judicial notice is granted. In this employment action, Plaintiff alleges FEHA related causes of action for disability discrimination, retaliation, failure to accommodate and failure to engage in the interactive process. She also alleges a cause of action for wrongful termination in violation of public policy. The Court has twice previously sustained Defendant's demurrer with leave to am...

Excerpt: ...fees between Plaintiffs and Defendant. The Court notes that it granted Defendant's special motion to strike Plaintiffs' complaint on August 2, 2018. Defendant's cross‐complaint for conversion, fraud and money had and received remains pending. Plaintiffs move to disqualify Defendant's counsel on the basis that counsel has an irreconcilable conflict of interest after appearing in Plaintiff William Palmer's divorce proceeding and acting as the set...

Excerpt: ...this action is granted. The Court previously granted, with leave to amend, the motion for judgment on the pleadings filed as to the Original Complaint. The Court found that the allegations of the Complaint were not sufficient to allege that the individual defendant, Joon Kong, was plaintiff's employer. Defendants contend that the FAC has not cured the defects and that no viable cause of action is alleged against Defendant Joon Kong. Plaintiff...

Excerpt: ... Center d/b/a Cost‐U‐Less Insurance Center ("Cost‐U‐Less"), as a broker of insurance policies, allegedly engages in the systematic practice of issuing entirely new and superfluous policies to obtain broker fees when Plaintiffs only required a simple amendment to a previously issued policy. The FAC also alleged claims regarding allegedly unlawful deposits charged by defendants when policies were purchased. The Complaint was filed A...

Excerpt: ...984) 153 Cal.App.3d 902, 905.) The Court cannot consider the extrinsic evidence on a demurrer. (See, e.g. Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.) Although a court is authorized to take judicial notice in connection with a demurrer ( Code Civ. Proc., § 430.30, subd. (a)), it may not judicially notice the truth of assertions in declarations or affidavits fi...

Excerpt: ...lace on September 19, 2018. The Clerk shall fax a copy of the tentative ruling to the litigation coordinator. The litigation coordinator shall provide the tentative ruling to plaintiff Frank Lee Dearwester. Appearance is required on September 19, 2018. Plaintiff Frank Lee Dearwester shall be available, by COURTCALL, to participate in oral argument on the continuance date. Defendant's Request for Judicial Notice is granted. This cases arises f...

Excerpt: ... enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." As seen from the moving papers, Plaintiff and Defendant Mickey Iliescu entered into a settlement agreement in December 2016 providing that Defendant was to pay Plaintiff a total of $113,000 according to a detailed payment sc...

Excerpt: ... Fargo Bank (1990) 220 Cal. App. 3rd 1117, 1138.) The law favors settlement, particularly in class actions and other complex cases where substantial resources can be conserved by avoiding the time, cost, and rigors of formal litigation. (See Newberg on Class Actions 4th (4th ed. 2002) § 11.41 (and cases cited therein); Class Plaintiffs v. City of Seattle (9th Cir. 1992) 955 F.2d 1268, 1276; Van Bronkhorst v. Safeco Corp. (9th Cir. 1976) 529 F.2d...

Excerpt: ... Kia moves to strike punitive damages and the request for Civil Penalties in connection with the Third Cause of Action. Kia argues that punitive damages are not available under the Song‐Beverly or Magnuson Moss Acts. Kia also argues that the fraud cause of action cannot support punitive damages because the fraud claim is insufficiently pled as argued in its demurrer and thus there is no basis for punitive damages. However, since the Court has c...

Excerpt: ...to a demurrer no later than the date the opposition to the demurrer is due. (CCP § 472(a).) The opposition was due on August 27, 2018 and no stipulation has been presented to the Court. The Court therefore strikes the first amended complaint filed on August 31, 2018, on its own motion. The Clerk is directed to strike the first amended cross‐complaint. Defendant's request for judicial notice is granted. In this employment action Plaintiff alleg...

Excerpt: ...e), as well as common counts for account stated and book account. ( See generally, Complaint (Register of Actions (“ROA”) 1.) The allegedly‐breached Promissory Note is attached as Exhibit A to the Complaint. The Promissory Note is dated September 5, 2012, and reflects in part that for “value received,” Plaintiff loaned Defendants a lump sum of $145,000.00, to be “repaid in 144 consecutive monthly installments of interest only on the f...

Excerpt: ...a Rockholt's (“Plaintiff”) Second Amended Complaint (“SAC”) is OVERRULED. This is an employment dispute wherein Plaintiff alleges wrongful termination in violation of public policy, wage and hour claims, unfair competition, and negligent supervision. The SAC includes an Eleventh Cause of Action seeking remedies under the Private Attorney General Act [PAGA]. (SAC at 27‐29.) Plaintiff alleges that she worked for Defendants between March 2...

Excerpt: ...ts including open book and account stated. This matter was originally set for trial on July 6, 2018. On June 12, 2018, Judge De Alba granted Wells Fargo's Ex Parte Application to Continue Trial, and set August 24, 2019 as the new trial date. (Register of Actions (“ROA”) No. 17, 24‐25.) Defendant Maria Mejia (“Defendant” or “Mejia”) filed an Answer styled as a “General Denial” on May 17, 2017. On January 17, 2018, the Court grant...

Excerpt: ...D. CSG's Request for Judicial Notice (“RJN”), which attaches prior court filings in this action (Exhs. A‐C), is unopposed and is GRANTED. Code of Civil Procedure §§ 1209 et seq. provides this Court with the power to punish acts which are in “disobedience of any lawful . . . order of the court.” (Code Civ. Proc. § 1209(a)(5); see also Pacific Telephone and Telegraph Co. vs. Sup. Ct. (1968) 265 Cal.App.2d 370 (section 1209 contempt pro...

Excerpt: ...ion Code §§ 18670 and 18674 regarding Real Party In Interest Malcolm McKinney's outstanding tax liability in the amount of $837.77. On June 21, 2018, the District Attorney deposited the sum of $24,026.58 with this Court in response to the Franchise Tax Board's order to withhold. The Court clerk is instructed to disburse $837.77 of the amount deposited with the Court to the State of California Franchise Tax Board. The Court clerk is instructed t...

Excerpt: ... Plaintiff served the subject discovery on Defendant on February 9, 2018. After receiving a 30 day extension of time to respond, Defendant provided unverified responses on April 16, 2018. “Unsworn responses are tantamount to no responses at all." (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Plaintiff requested verifications from Defendant on April 25, 2018, and again on July 10, 2018. At the time this motion was filed, Plain...

Excerpt: ...ion for negligence, breach of implied warranty of habitability, negligent maintenance of premises, maintenance of a nuisances, and wrongful eviction, all relating to a substandard four‐plex residential rental unit. Plaintiffs mail‐served each defendant with their first set of written discovery on March 14, 2018. Defendants served response on April 17, 2018, which consisted of objections in response to each discovery request. During the meet a...

Excerpt: ...Sacramento, California (the “Jefferson Property"). Plaintiff filed his complaint for “preliminary and permanent injunctions, and for damages” on June 7, 2018. Plaintiff alleges Defendants failed to pay him for the services he rendered in connection with the Jefferson Property. Defendants now move to compel arbitration pursuant to the terms of a General Partnership Agreement entered into by and between Plaintiff, Defendants, and two othe...

Excerpt: ...urants throughout Northern California, from October 2016 through August 2017 as a non‐exempt employee. Plaintiff filed his action on November 20, 2017, alleging a single claim under the California Labor Code Private Attorneys General Act of 2004 (“PAGA”). Plaintiff asserts claims for failure to provide legally complaint meal and rest periods, failure to issue complete wage statements, failure to pay all wages due and owing upon separation o...

Excerpt: ...ments filed by respondents are therefore not being considered. Moreover, there is no legal basis set forth in the documents that would constitute a valid opposition to the petition. Therefore, the Petition is granted. Petitioner has filed a petition for Order Striking and Releasing Lien or Other Encumbrance on Property of Public Officer or Employee pursuant to CCP §§765.010‐ 765.060. CCP 765.010 provides in pertinent part: (b) A person shall ...

Excerpt: ... Hawkins in exchange for $100,000 per year payable monthly. Defendant Vrame is the Managing Member of Defendant Conservation Resources, LLC. Plaintiff alleges a breach of contract and fraud claim. Plaintiff alleges that in January of 2012, he was hired by defendant Vrame as a consultant with CRLLC, earning $100,000 per year. In exchange for the payment of $ 100,000 per year, plaintiff was to provide consulting services on various projects under t...

Excerpt: ...mmary judgment or summary adjudication may demonstrate that the plaintiff's cause of action has no merit by showing that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(f)(2), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 849.) This showing must be supported by evidence, such as affidavits, declarations, admissio...

Excerpt: ...ourt Fees" limited resources, unable to pay." This is an action for money damages arising from a credit card account. The complaint has common count causes of action including open book account, account stated, money lent by plaintiff to defendant at defendant's request, for money paid, laid out, and expended to or for defendant at defendant's special instance and request, and unjust enrichment. Defendant does not deny any allegat...

Excerpt: ...tion. Defendants' Request for Judicial Notice is granted. The instant motion seeks an award of the City's attorney's fees incurred on the most recent appeal. The Remittitur to the Trial Court Clerk issued on May 29, 2018. This motion for contractual attorney's fees is timely under California Rules of Court, rule 3.1702(c)(1), which provides that a motion to claim contractual attorney fees on appeal must be served and filed within ...