Excerpt: ...to show that the 5‐year period for a mandatory dismissal has run. The 5‐year period was tolled pursuant to Code of Civil Procedure §§ 583.340(b) and (c) because the action was stayed and/or it was "impossible, impracticable, or futile" to prosecute this action while the matter was sent to arbitration. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1091‐1092 [a stay of proceedings tolls the five‐year period under § ...

Excerpt: ...a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same auth...

Excerpt: ...pursuant to Labor Code section 2699(g) of a settlement providing for resolution of her claim under PAGA in exchange for payment of $2,500 to the LWDA. The confidential settlement agreement provides for a release of plaintiff's claims only. The court notes that the parties' proposed settlement is anomalous, because there is no such thing as an "individual" PAGA claim. The Private Attorneys General Act of 2004 authorizes an aggrieved employee, acti...

Excerpt: ...mployment Arbitration Rules. AAA Rule 6 clearly and unmistakably provides that the arbitrator determines "the existence, scope or validity of the arbitration agreement." Based on that delegation clause, the arbitrator will decide whether the parties' underlying dispute is subject to arbitration. (See Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 557 ["The Contract provides that if a contested claim is not settled within the con...

Excerpt: ...action for breach of warranty in Geo Cell Solutions, Inc.'s second amended cross‐complaint is denied. The court rejects Maxxon's statute of limitations argument. The 4‐year statute of limitations of Code of Civil Procedure, § 337, which can implicate the discovery rule, applies to the cross‐complaint. (Carrier Corp. v. Detrex Corp. (1992) 4 Cal.App.4th 1522, 1529 ["We therefore hold that in a case involving indemnification for damages unde...

Excerpt: ...on was brought against defendant in New York federal district court (Dennis). That putative class action sought relief on behalf of Mr. Dennis as well as "all others similarly situated." (Defendant's Request for Judicial Notice, Ex.1.) The Dennis action settled and the court dismissed it with prejudice. Defendant does not supply the settlement agreement, and there is no indication in the Stipulation and Voluntary Dismissal with Prejudice that the...

Excerpt: ...ontest Platitiff Alicia Gonzaless Application For Good Faith Determination And Request For Continuance Defendants Boanerges Miranda and Horlino Tabios' motion to contest good faith settlement is granted. While the party asserting the lack of good faith has the burden on that issue (Code Civ. Proc. § 877.6(d)), the settlors must provide the court with a sufficient evidentiary basis upon which to make a good faith determination. (See Code Civ. Pro...

Excerpt: ... Of Appeals. Plaintiff Armando Reyes' motion for order to temporarily stay all legal proceedings pending the resolution of his "emergency appeal" to the Court of Appeal is denied. Plaintiff has filed notices of appeal from orders dated December 23, 2019 and January 3, 2020 denying his motions to seal his birth date and medical records. However, those orders are not appealable, and Plaintiff has not acted diligently to file a petition for writ of ...

Excerpt: ... The exclusive concurrent jurisdiction rule provides: "where two (or more) courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all others, thus rendering 'concurrent' jurisdiction 'exclusive' with the first court." (Franklin & Franklin v. 7‐Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175.) The rule of exclusive concurrent jurisdiction "i...

Excerpt: ...es At Deposition, And For Sanctions: Pro Tem Judge Katherine Gallo, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed be...

Excerpt: ...Cal.App.4th 968, 994.) Defendant fails to show that Plaintiff is unable to state a claim under § 17200. Defendant does not show that Plaintiff is unable to state a claim for § 17200 relief under any theory. Defendant's demurrer challenges Plaintiff's ability to allege that Defendant's actions were "unlawful." However, that is not the only basis of support for a § 17200 claim in the complaint. Plaintiff also alleges that "Gap committed 'unfair'...

Excerpt: ... and Hylen's opposition fails to address plaintiff's arguments. The court further notes that Hylen cannot appear for the corporations because he is not an attorney. (See Merco Constr. Engineers, Inc. v. Municipal Crt. (1978) 21 Cal.3d 724, 727.) The court previously gave Hylen an opportunity to obtain counsel for the entities but he failed to do so. "[W]hen a corporation sells or transfers all of its assets to another corporation constituting its...

Excerpt: ...e delegation clause. (Newman Decl., Ex. A [Employment and Confidential Information Agreement, 7].) The agreement states "an arbitrator, not the courts, shall decide any and all issues of arbitrability, including but not limited to the threshold issue of arbitrability, whether arbitration is appropriate, or whether the arbitrator has jurisdiction to decide the underlying dispute." (Id. 7a.) Such a clause is enforceable. (E.g., Aanderud v. Superior...

Excerpt: ...), Special Interrogatories (Set One), Requests For Production Of Documents (Set One), And Requests For Admission, (Set One) And For Sanctions. The report and recommendation of the judge pro tem is adopted. Plaintiff's motion to compel defendants' responses to form interrogatories (set one), special interrogatories (set one), and requests for admissions (set one) and for sanctions is granted. Defendants shall provide code-compliant, verified respo...

Excerpt: ...m merely because she has included a photo of one of the ads at issue in this litigation as an exhibit to her complaint. Defendant provides no authority that an individual may no longer seek an injunction on a claim for violation of the right to publicity under such circumstances. Defendant's motion to strike punitive damages is denied, as the complaint sufficiently alleges malice. "[W]here it is proven . . . that the defendant has been guilty of ...

Excerpt: ...summary judgment is granted. Even if plaintiff could show that she was subjected to an adverse employment action that materially affected the terms and conditions of her employment and a causal link existed between the protected activity and the employer's action, Plaintiff cannot establish any of her causes of action because the defendant had a legitimate reason to extend plaintiff's probation and transfer her. Plaintiff fails to present substan...

Excerpt: ...ent is denied on the ground that it has not met its initial burden of production. (Code Civ. Proc., § 437c, subd. (c); see Minish v. Hanuman Fellowship (2013) 154 Cal.App.4th 437, 444.) Compass's alternative motion for summary adjudication on the three causes of action is also denied. Summary adjudication of the breach of contract cause of action is denied because triable issues of fact exist as to whether Compass employees who were provided wit...

Excerpt: ...posed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Plaintiff testified that Meeks Lumber trucks delivered materials including joint compound to his jobsites in the 1970s, including a tavern/motel in Grenada, California, a Yreka High School project, a tract home project off Turre Street and the Camel tract project off Oberlin Street. (Darrell Grace Deposit...

Excerpt: ...alifornia State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superi...

Excerpt: ...b provides that a defendant must file a motion to transfer venue "at the time he or she answers, demurs, or moves to strike, or . . . without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint?." Section 396b "represents an explicit codification of the general 'waivability' of venue defects, providing that, notwithstanding the governing venue provisions, an action may generally be tried 'in...

Excerpt: ...Sections 395.5, 396b And 397 Defendant Pinnacle International's motion to change venue is denied. On a motion to change venue, the burden is on the moving party to show (1) that venue is proper in a different county than the one in which the lawsuit was filed and (2) that venue is improper in the current county under any applicable theory. (La Mirada Comm. Hosp. v. Sup. Ct. (1967) 249 Cal.App.2d 39, 42.) Defendant fails to show that venue is impr...

Excerpt: ...nt Stephens Institute's motion for summary judgment and/or summary adjudication is denied in its entirety. The doctrine of contractual assumption of the risk/release does not bar plaintiff's claims. There exists a triable issue of material fact regarding whether defendant's conduct was grossly negligent. A release does not apply to a claim for gross negligence. (See Rosencrans v. Dover Images., Ltd. (2011) 192 Cal.App.4th 1072, 1081.) While there...

Excerpt: ...is denied. Summary adjudication of the third cause of action against Dr. George is denied. In Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, the court expressly rejected the examining physician's contention that he could not be held liable for the treating physician's subsequent failure to obtain informed consent because he neither treated nor operated on the patient, concluding that "the jury could reasonably conclude that [the examining ph...

Excerpt: ...The claims are pleaded with the requisite specificity. (Amended Complaint, 41-46.) The cited representations are actionable even if they are characterized as "opinion" because defendants had superior knowledge on the topic. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 892 ["it is well settled that an opinion may be actionable when it is made by a party who 'possess[es] superior knowledge.'"]; Walker v. Signal Companies, Inc....

Excerpt: ...ANTHONY AMBURN Motion For Protective Order And For Appointment Of Discovery Referee And Request For Monetary Sanctions Against Plaintiff Jonathan Korzekwa And His Counsel Joseph S. May And The Law Office Of Joseph S. May By Defendant Encore Karaoke Lounge, LLC. Pro Tem Judge Steven Stein, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion....