Excerpt: ...which were set out in Rappleyea v. Campbell (1994) 8 Cal.4th 975. First, ARROWPOINT has established that it has a meritorious defense in that if STANDARD is defended, the $832,750.00 judgment, which includes $750,000.00 in general damages, will most likely be reduced. Second, ARROWPOINT has established a satisfactory excuse for not defending the action in that it never had notice of the action until April, 2018. Third, ARROWPOINT has established ...

Excerpt: ...distress or acted with reckless disregard in causing plaintiff emotional distress. Finally, the complaint does not allege facts indicating that plaintiff experienced severe emotional distress as a result of the cutting of the tree. (See CACI 1600, 1602, 1603, and 1604). Plaintiff offers no new facts that could be alleged that would cure the defects in the complaint with respect to this cause of action. Therefore, the demurrer is sustained without...

Excerpt: .... Grosvenor Airport Assocs. (2005) 2005 Cal.App.Unpub.LEXIS 2239. While this court is not bound by those unpublished decisions, it does find in the absence of any binding authority that the absence of a MC‐011 worksheet is not a proper basis for striking all costs. Nevertheless, when costs claimed in a Judicial Council Optional Form MC‐010 summary are challenged by motion, and a worksheet is then provided with the opposition, the moving party...

Excerpt: ...t was brought. The complaint is uncertain, and fails to state facts sufficient to constitute any of the causes of action alleged. The court also grants the motion to strike on all of the grounds upon which it was brought. The references in the complaint to causes of action that are not alleged are improper, and the complaint does not state facts sufficient to constitute a claim for punitive damages. Had plaintiff not already filed an amended comp...

Excerpt: ...ting.” (Duran v. U.S. Bank (2014) 59 Cal.4th 1, 29; Payton v. CSI Elec. Contractors, Inc. (2018) 27 Cal.App.5th 832, 842; Cruz v. Sun World Int'l, LLC (2015) 243 Cal.App.4th 367, 384; Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 989.) Even when there is a uniform policy, certification may be denied if the evidence shows that the manner in which the policy was implemented as to each individual employee varied depending on multiple ...

Excerpt: ...tion with other causes of action is generally prohibited. (Mobil Oil Corp. v. Superior Court (1978) 79 Cal.App.3d 486, 493; Childs v. Eltinge (1973) 29 Cal.App.3d 843, 853.) Plaintiff has not demonstrated that an exception should be made in her case. (See, Knowles v. Robinson (1963) 60 Cal.2d 620, 625‐626 [exceptions to the rule are primarily grounded on some circumstance removing the need of timely possession of the premises, such as voluntary...

Excerpt: ...ng stricken if an objection to it is raised. Page 2 of 6 C.C.P. §437c(d) states: Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at th...

Excerpt: ...ed Defendant's agent, Anna Chavez, that Defendant's policy of limiting staff contact was causing Decedent “physical and mental suffering”, but Defendant nonetheless took no action to avoid the harm. (FAC, ¶ 21.) This allegation establishes not just the absence of care, but an affirmative disregard of the known risk of harm caused by conduct. (Doe v. U.S. Youth Soccer Ass'n, Inc. (2017) 8 Cal.App.5th 1118, 1140.) It also sufficiently describe...

Excerpt: ...ntment of a referee is also denied. The court does not find a basis for the appointment of a referee under CCP Section 639. The court notes, however, that the conduct of both plaintiff's counsel and defense counsel has been somewhat unreasonable and unprofessional in this matter. As to plaintiff's counsel, she did assert a number of meritless objections. Irrelevancy is not a proper objection in discovery. Defense counsel is entitled to seek all c...

Excerpt: ... motion itself or a memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112(a).) The failure to include a memorandum is deemed by this Court as an admission that the motion is not meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) The motion does not state what allegations are sought to be deleted or added. (Cal. Rules of Court, rule 3.1324, subds. (a)(2)‐ (a)(3).) The motion is not accompanied by a sep...

Excerpt: ...crimination, the complaint does not allege sufficient facts indicating that plaintiff suffered from a disability or disorder, as that term is defined in Government Code §12926(j), or that she was discriminated against as a result of this disability. As to the first cause of action for retaliation in violation of the FEHA, the demurrer is sustained for failure to plead sufficient facts. The complaint does not allege facts indicating what conduct ...

Excerpt: ... engaged in assigned work at the time of his injury. (Complaint, p. “6”, ¶ GN‐1; Exh. C, p. “23”.) Inmates are entitled to workers' compensation benefits for injuries arising out of and in the course of assigned work and those benefits constitute the exclusive remedy for injuries sustained. (Lab. Code § 3370(a).) “Where the complaint affirmatively alleges facts indicating coverage by the workers' compensation laws, if it fails t...

Excerpt: ...ep't of Transp. (2013) 220 Cal.App.4th 104.) It is undisputed that Defendant Fancher was recruited and hired to provide nursing services at a hospital in Martinez. Page 2 of 2 (Plaintiffs' Response to UMF, 1.) It is undisputed that Defendant Fancher's shift at the hospital had ended two hours prior to the accident, that Defendant Fancher went out to have dinner by herself after her shift, and that the accident occurred while Defendant Fancher was...

Excerpt: ... of examinations and release of medical records as this matter proceeds to trial. Defendants' motion for severance was previously denied on January 22, 2019. Defendants have failed to show any new or different facts, circumstances, or law warranting reconsideration. (Code Civ. Proc. § 1008(a); Baldwin v. Home Sav. Of Am. (1997) 59 Cal.App.4th 1192, 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689‐690.) ...

Excerpt: ...ss the provisions are so clearly in favor of the employer they should not be enforced. AT&T Mobility LLC v. Concepcion [“Concepcion”) (2011) 562 U.S. 333; Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83. Armendariz identified 5 requirements for a valid arbitration of employment dispute agreement. Such an agreement "(1) provides for neutral...

Excerpt: ... objection nor does the objection substantively have merit. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276). The “substantial importance” argument is only relevant to a later claim for recovery of fees and costs associated with proving true a RFA after its denial. The court finds that the most requests are not vague and ambiguous with the exception of RFAs 15...

Excerpt: ..., ¶ 19; see, Decl. of Mikhov, ¶¶ 17, 25 [admitting that the case settled for the sum of $41,000, the same amount offered on May 23, 2017].) Section 998 applies to Song‐Beverly Act claims. (Duale v. Mercedes‐Benz USA, LLC (2007) 148 Page 2 of 2 Cal.App.4th 718, 728.) Consequently, Plaintiff is limited to recovery of only preoffer fees and costs. In addition, even without considering the validity of Defendant's 998 offer, Plaintiff has faile...

Excerpt: ...by filing a UCC financing statement claiming a security interest in Plaintiff GMP Process Piping. But, as already explained in Page 2 of 3 this Court's ruling on Defendants' demurrer to Plaintiffs' prior cause of action for breach of the implied covenant of good faith and fair dealing based on the same two claims, the parties' agreement contained no provision regarding the need for or referral regarding any accountants and specifically granted De...

Excerpt: ... the implied warranty of merchantability. The core test of merchantability is fitness for the ordinary purpose for which such goods are used, and the warranty may be breached if a vehicle is not in a safe condition. (Brand v. Hyundai Motor Am. (2014) 226 Cal.App.4th 1538, 1546‐1547; Isip v. Mercedes‐Benz USA, LLC (2007) 155 Cal.App.4th 19, 26‐27.) Plaintiff has adequately alleged facts from which it can be concluded that the vehicle was not...

Excerpt: ...ed to stop at the accident scene and provide his contact information. This allegation, without more, is not sufficient to indicate malice or conscious disregard on the part of defendant. As the courts indicated in Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82, although alleged intoxicated driving may give rise to a punitive damages claim, such an allegation, without any alleged facts regarding ...

Excerpt: ... to this court that a default judgment had previously been submitted to the court. At the subsequent dismissal hearing, no appearance was made by Plaintiff and the matter was thereafter dismissed without prejudice due to failure to prosecute. Unfortunately, while the court appreciates that counsel has a large collections practice, counsel and his law firm are inappropriately shifting the burden of managing their legal practice to this court. This...

Excerpt: ...s appreciated value. Unlike an agreement for an interest in property, such an agreement is not required to be in writing. (Dutton v. Interstate Investment Corporation (1941) 19 Cal.2d 65). The first amended complaint also states facts sufficient to constitute a cause of action for imposition of a constructive trust and a cause of action for imposition of a resulting trust in that it alleges facts indicating an underlying wrong upon which a constr...

Excerpt: ...he award of reasonably incurred costs and expenses even if they might be barred under Code of Civil Procedure section 1033.5. (Jensen v. BMW of N. Am., Inc. (1995) 35 Cal.App.4th 112, 138.) As already determined by this Court in ruling upon Plaintiff's motion for attorneys' fees, it was not reasonable for Plaintiff to continue to prosecute the action after Page 2 of 2 Defendant offered to settle the action for $34,000 on or about January 3, 2017....

Excerpt: ... have common worksites, similar occupations, similar times of exposure, or similar types of diseases. In addition, although three of the plaintiffs are living, one is deceased and another is seeking preference in trial setting due to his health. Finally, the status of the discovery in each case appears to be different. Therefore, the court finds that there is insufficient commonality for the four cases to be consolidated. ...

Excerpt: ... motion itself or a memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112(a).) The failure to include a memorandum is deemed by this Court as an admission that the motion is not meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) The motion does not state what allegations are sought to be deleted or added. (Cal. Rules of Court, rule 3.1324, subds. (a)(2)‐ (a)(3).) The motion is not accompanied by a sep...