Excerpt: ...at the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery. The privacy interests of fellow employees elsewhere in California could have been addressed by conditioning discovery on a Belaire‐West notice. (Williams v. Superior Court (2017) 3 Cal.5th 531, 559) Regarding the motion to compel further response to Special Interrogatory Nos. 4 and 5, the Court finds that...

Excerpt: ...t any time before or after commencement of trial, in the furtherance of justice”. CCP §573. However, an amendment after the conclusion of the trial, with the evidence in and arguments completed, is permissible in only three situations: (1) to conform to proof; (2) to correct a mistake or imperfection in the pleading; and (3) to bring in new issues, necessitating a reopening of the case for further evidence. Witkin, 5 Cal. Procedure, “Pleadin...

Excerpt: ... an attachment order “shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein”. CCP §482.040. Conclusory or generalized statements in a declaration in support of an application for a writ of attachment “do not suffice”, and ...

Excerpt: ...do not have the ability to satisfy the bond requirement, (Barragan Dec. filed 6/9/21¶ 18), the Court will use its equitable powers and set the bond amount at one half the amount of the judgment. $908,097.67 ÷2= $454,048.83. Defendants may apply (or may be credited for) the $130,520.52 in funds levied in Defendants' Chase Bank Accounts pursuant to Plaintiff Valley Fresh Produce Inc.'s Writ of Execution. Therefore, in addition to the $130,520.52,...

Excerpt: ...eir duties with respect to the care of Charles McDermott's Foley catheter while he was in their care and custody, and in failing to properly train and supervise their staff; and that this neglect was the cause of Mr. McDermott's death. Defendant Healthy Living moves for summary judgment/adjudication on the basis that its nurses met the standard of care in all respects, including the care of Charles' catheter; and that this demonstrates that Defen...

Excerpt: ... CCP § 340.5), she must allege (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638) and the allegations must be pled with specificity, “In California, fraud must be pled specifically; general and conclusory allegations do not s...

Excerpt: ...nt to arbitrate between the parties (The trial court is to decide two “gateway issues” of arbitrability: (1) whether there is an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.), the Court finds that Defendants have met their burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. He...

Excerpt: ...ding a party's admissions or concessions which cannot reasonably be controverted. (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989 [94 Cal.Rptr.2d 643].) Here, the following matters have been admitted and considered by the Court: 1. Guadalupe Fuentes had a Shop Your Way Mastercard branded credit account number 8419 issued by CITIBANK, N.A. 2. Guadalupe Fuentes received periodic statements regarding the Shop Your Way Mastercard brand...

Excerpt: ... the party fails to obey. (E.g., Code Civ. Proc., former § 2023.) (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799 [60 Cal.Rptr.3d 22].) Here, Shane Kephart has deliberately disregarded the Court's prior discovery orders dated 12/11/20; no lesser alternatives would remedy the situation; the fault lies with the client and not the attorney (Kephart is unrepresented); and a contempt order was entered against Kephart on 3/22/21. Shane Kephart'...

Excerpt: ...ause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility. Here, the Complaint alleges “Defendant's conduct constitutes an unreasonable change in, and increase of, Defendant's use of the Easement in a manner that imposes ...

Excerpt: ...work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (b) ...

Excerpt: ...of CANRA is defined in Pen. Code 11165.6, which lists several forms of child abuse and neglect with references to other Penal Code sections for their more specific definition. As is relevant here, §11165.6 refers to “the willful harming or injuring of a child or the endangering of the person or health of a child, as defined in Section 11165.3”. Section §11165.3 defines the “willful harming or injuring of a child or the endangering of the ...

Excerpt: ...ecial Motion to Strike, and will not be considered in ruling on the motion. A plaintiff may not seek to subvert or avoid a ruling on an anti‐SLAPP motion by amending the challenged complaint in response to the motion, as Plaintiff has done here. Salma v Capon (2008) 161 Cal. App. 4th 1275. Requiring the trial court to analyze the amended claims under CCP §425.16 simply because the claims were amended before the court ruled on the first motion ...

Excerpt: ...s First Amended Cross‐Complaint herein (“Liability Trial”) in order to resolve the issue of whether the 37 Foot Walk is a public space or plaintiffs' private patio area is granted. Plaintiffs' motion to set hearing date and briefing schedule re: administrative writ is granted in part and denied in part. The hearing date and briefing schedule re: administrative writs will be set immediately upon conclusion of the Liability Trial. Plaintiffs ...

Excerpt: ...��water well, water tank and supporting structures”. LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 3, 2021 TIME: 8:30 A.M. 5 The Court finds that Plaintiffs have a probability of prevailing on their claim to a deeded easement to the existing water well and its supporting structures, which includes the right to access the easement to make repairs; and that the balancing of the harms favors Plaintiffs on that claim. The Court finds that the easemen...

Excerpt: ...mption in favor of private arbitration, an arbitral award should ordinarily stand immune from judicial scrutiny."(City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 334.) Here, Respondent has not satisfied his burden of showing that he has been substantially prejudiced by refusal of the arbitrator to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrator to hear evidence ...

Excerpt: ...mption in favor of private arbitration, an arbitral award should ordinarily stand immune from judicial scrutiny."(City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 334.) Here, Respondent has not satisfied his burden of showing that he has been substantially prejudiced by refusal of the arbitrator to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrator to hear evidence ...

Excerpt: ... of conduct as a defense to the action when brought.”(Lantzy v. Centex Homes,(2003) 31 Cal. 4th 363, 383) “A valid claim of equitable estoppel consists of the following elements: (a) a representation or concealment of material facts (b) made with knowledge, actual or virtual, of the facts (c) to a party ignorant, actually and permissibly, of the truth (d) with the intention, actual or virtual, that the ignorant party act on it, and (e) that p...

Excerpt: ... for a continuance. Plaintiffs have been prevented from completing depositions and other discovery in preparation for trial. (Pltf's Ex parte App.pg.2:10). On 5/12/21, Defendant's cardiologist advised Mr. Schwartz to take two‐months rest from the practice of law. (to Ex. 2 to Dec. Donald Schwartz in support of motion to continue trial date which is Ex. B Defendants' Ex parte Appl.) (Cal Rules of Court, Rule 3.1332(c)(2) & (3)) Based upon the pl...

Excerpt: ...Shahram Tabatabai is granted, and Robert Lindow's First Amended Cross‐Complaint is stricken in its entirely . Tabatabai's demurrer to Lindow's First Amended Cross‐Complaint is therefore moot, as is his Motion to for Leave to Conduct Discovery Limited to Lindow's Opposition to Tabatabai's Anti‐SLAPP Motion. Shahram Tabatabai's Motion to Compel Lindow's Responses to Form Interrogatories, Set Two, is granted, on the grounds discussed below. Ro...

Excerpt: ...gueroa Dec. Ex.'s 7‐ 12) Although Plaintiff may not have properly served the discovery responses and the wording of the “verification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant. The purpose of discovery is to bring out information which will lead to a just decision on the merits. The sanction of peremptory dismissal, without consideration of the merits, is ...

Excerpt: ...dings were based on substantial evidence.”'” This requires the reviewing court to consider all relevant evidence in the administrative record and view that evidence in the light most favorable to the agency's findings, drawing all inferences in support of those findings. The reviewing court does not substitute its own findings and inferences for that of the agency. “Only if no reasonable person could reach the conclusion reached by the admi...

Excerpt: ... filed LAW AND MOTION TENTATIVE RULINGS DATE: May 25, 2020 TIME: 8:30 A.M. 9 until January 8, 2021, well beyond this 60‐day period. The Court is not persuaded by Defendants' assertion that they could not have timely filed these motions while the action was venued in Los Angeles Superior Court, due to the filing of their motion for change of venue in that court and Plaintiffs' motion for reconsideration of the order for transfer of the case to S...

Excerpt: ... acted beyond its jurisdiction. Abuse of discretion is established if the respondent has not proceeded in a manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. Under the substantial evidence test, the DRE's findings are presumed to be supported by the administrative record and it is Petitioner's burden to show that they are not. Donley v Davi (2009) 180 Cal. App. 4th 4...

Excerpt: ...ment. Plaintiff is to file any amended complaint within 20 days of this ruling. Defendant's RFJN The court grants Defendant's request for judicial notice of the following: • The unlawful detainer judgment against Plaintiff and in favor of Defendant; • The Bankruptcy Court's order in Plaintiff's bankruptcy action denying her motion to amend an order lifting the automatic stay; • Trustee's Deed showing Defendant as the lawful owner of the sub...

Excerpt: ... bringing an action under section 709, and allow the court to consider the merits of the action without first determining whether the petitioning party did in fact have a legal right to vote.” (Haah v. Kim (2009) 175 Cal.App.4th 45, 53‐55) On demurrer, the complaint is to be given a reasonable interpretation, admitting the truth of all material facts properly pleaded. (Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967) Plaintiffs h...

Excerpt: ...on by not proceeding as required by law, i.e. by not making any actual findings. LoForti states he “reviewed the application with Deputy County Administrative Officer Melodye Serino, the cannabis Licensing Official under Chapter 7.130 who LoForti reports to. Serino agreed with and adopted LoForti's finding under Section 7.130.l 10(E)(3) that the general public benefit would outweigh concerns regarding intensity of use, land use compatibility, a...

Excerpt: ...ing party to submit‐‐in place of a separate statement‐‐a concise outline of the discovery request and each response in dispute”, Plaintiff has not requested nor has the court allowed Plaintiff to submit a concise outline in lieu of a Separate Statement. Plaintiff asserts that these interrogatories are an attempt to understand Defendant's theory of the case. However, the interrogatories do not ask for facts supporting Defendants' theory,...

Excerpt: ...n default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.” Under subsection (b)(1), the consumer may then “unilaterally elect” to “withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction”. Defendants do not dispute that they are the party who drafted the arbitration agreement at issue, that the arbitration agre...

Excerpt: ...ewing his request pursuant to CA Penal Code § 18420 ...

Excerpt: ... action, CAIC must establish the absence of any potential for coverage in order to prevail on its motion. Voyager, who is standing in for the insured, need only show that the underlying claim may fall within policy coverage. “Facts merely tending to show that the claim is not covered, or may not be covered, but are insufficient to eliminate the possibility that resultant damages (or the nature of the action) will fall within the scope of covera...

Excerpt: ... Berkeley (1987) 195 Cal.App.3d 578, 583, Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497) The motion to strike the prayer for punitive damages is granted. First, the County is immune from punitive damages: A public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant. (Gov. Code, § 818.) More important here, the 6D...

Excerpt: ...ince the date of Mr. Dutra's death on March 29, 2016 to March 29, 2021, in the amount of $1,469,857.06 The Court finds that Well‐Pict has met its burden of proof in establishing that James R. Dutra is the debtor on the account. The Court directs the parties to appear at the hearing prepared to discuss whether the Declarations of George Schaff and Joan Taylor, which authenticate the book accounts, are sufficient to meet Well‐Pict's burden of p...

Excerpt: ...one or more material facts exists as to the cause of action or a defense thereto. The defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. CRC 3.1350 provides that the Separate Statement of Material Facts should include “onl...

Excerpt: ...ese alleged changed circumstances (no evidence of any proposals or offers he has made, or when they occurred). Instead he provides only the vague statement that “Plaintiffs tried to exercise the option after the lease expired last year. We have continued to negotiate a price for my interest without any success. Not only have we used “best efforts' but we have used more than “best efforts”.”. (J. McEnery decl., ¶7.) Due to Defendant's f...

Excerpt: ... Question No. 7 is also a contention question, therefore the objection is sustained. If the deposing party “wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. The party answering the interrogatory may then, with aid of counsel, apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions. "[t]aking th...

Excerpt: ...ir burden of making a threshold prima facie showing that Mr. Lindow's cross‐complaint arises from protected activity. The allegations of the crosscomplaint demonstrate that the gravamen of the cross‐complaint is Mr. Maleksalehi's filing of his complaint against other parties (the Tabatabais), which Lindow claims caused Tabatabai to file a cross‐complaint against Lindow. The first c/a for abuse of process alleges that “pursuant to the goal...

Excerpt: ...rvene in an action if the trustee, legal owner, refuses to defend his title or claims adverse to the beneficiary. (Kobernick v. Shaw (1977) 70 Cal.App.3d 914, 919) According to Plaintiff's opposition, Jeanne Reveal has been evading service of process and to date has not been defending the claims. Therefore, her interest relating to the property or transaction is not being adequately represented by one or more of the existing parties. (CA CCP § 3...

Excerpt: ... any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (p)(2) A defendant has met his or her burden of showing that a cau...

Excerpt: ...ved on 1/21/21 are in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (see L. Kane Declaration filed 1/29/21 Ex. A) In addition, based on the declaration of Joseph De Hope, the Court finds that Keenan's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. “[T]he trial court may relieve a party from the consequences of its failure to serve a timely response i...

Excerpt: ... constitute a cause of action. The failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend. (Cal. Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280) The employer‐employee relationship, such as that between Plaintiff and Defendant Lay here, is not covered by the Act, which is confined to discriminations against recipients of the "bus...

Excerpt: ...derivatives for the purpose of injecting or infusing is a rendition of a service, not a sale. H & S §1606. Consequently, companies cannot be held strictly liable in tort for personal injuries which result from these activities. Plaintiffs have pled that “the stem cells that were manufactured from the amniotic fluid is not a “blood component” or “blood derivative” because it was not a product produced from whole blood”. TAC ¶20. Defe...

Excerpt: ...tential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer”. Buckner v Milwaukee Electric Tool Co.(2013)222 Cal. App 4th 522, 536. The “learned intermediary” defense does not appear on the face of the TAC, which alleges that “Dr. Lester reasonably believed that the intravenous administration of the stem cells to Mr. Reis was appropriate and pursuant to the FDA guid...

Excerpt: ...putation). (CA Practice Guide Civil Procedure Before Trial (TRG 2020) 6:158) The Second cause of action is also sustained without leave to amend. In order to justify an award of punitive damages on this basis, [conscious disregard of the safety of others] the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. (Taylo...

Excerpt: ...a Dec. Ex.'s 7‐ 12) Although Plaintiffs may not have properly served the discovery responses and the wording of the “verification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant. The purpose of discovery is to bring out information which will lead to a just decision on the merits. The sanction of peremptory dismissal, without consideration of the merits, is fund...

Excerpt: ...ecause auditors are statutorily and strictly liable under §11 for any misstatements in the financial statements which they audited and certified, unless they can demonstrate due diligence at the summary judgment stage. Under post‐Omnicare authority PWC is not strictly liable for the misstatements in Granite's financial statements.. In Johnson v. CBD Energy, Ltd., 2016 U.S. Dist. LEXIS 87174, the court expressly rejected the same “strict liab...

Excerpt: ...t to four large joint venture projects. The Court previously sustained the demurrer to the original complaint and granted Plaintiff leave to amend to allege facts demonstrating that circumstances known to Defendants at the time they made the representation of “reasonably possible additional costs” made this a misrepresentation of an of existing fact at the time it was made; to allege what LAW AND MOTION TENTATIVE RULINGS DATE: APRIL 6, 2021 T...

Excerpt: ...na Theater, (1981) 118 Cal. App. 3d 863, 870.) It appears that were the Court to grant either Party's request for an injunction/ modified injunction, that both parties would suffer great injury. In order to preserve the status quo until there has been a final determination of the merits of the action, the Court requests counsel to address at the hearing whether it would be appropriate to appoint a receiver to sell the car and take possession of t...

Excerpt: ...tion, have given rise to a cause of action against that employee or his personal representative. Here, Plaintiff alleges that Newman was acting outside the course and scope of his employment which exempts him from the requirement of complying with the Government Claims Act. As to the argument that the allegation Newman was acting outside the course and scope of his employment was a conclusion of law unsupported by factual allegations, the demurre...

Excerpt: ...1.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, and i...