Excerpt: ...ey's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be c...

Excerpt: ...aintiff, now an adult, suffered childhood sexual abuse from Defendant EDWARD HEARN ("HEARN"), a DOLPHINS employee. Legal Standard on Demurrer. "The function of a demurrer is to test the sufficiency of the complaint as a matter of law." (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his...

Excerpt: ...ictim". (Thing v. La Chusa (1989) 48 cal.3d 644, 667-658; Bird v. Saenz (2002) 28 cal.4th 910, 915.) A bystander may be aware that an injury-producing event is causing injury to the victim without visually observing the exact moment of injury. (Krouse v. Graham (1977) 19 Cal.3d 59, 76; Wilks v. Hom (1992) 2 Cal.App.4th 1254, 1271; see, Bird, 28 Cal.4th at 916 ["To be sure, Thing's requirement that the plaintiff be contemporaneously aware of the i...

Excerpt: ...ugs and/or controlled substances were in her system at the tme of October 25, 2021 motor vehicle collision." Timeliness of Motion. Code of Civil Procedure section 1987.1 gives the trial court power to quash, modify, or direct conditional compliance with a subpoena upon a party's motion. The court may make any order as appropriate to protect the subpoenaed entity from unreasonable demands. Code of Civil Procedure section 1985.3, subdivision (g) mo...

Excerpt: ...bd. (b), 2016.040.) Defendant's counsel's declaration accompanying its motion to compel states that since denial of Defendant's previous motion for leave to conduct a mental examination on February 22, 2023 the parties have met and conferred by phone and email. (Declaration of Simone M. Leighty in Support of Motion at "1 7-8, Exhibit F.) Subsequent to these discussions Defendant served a new demand for examination on March 13, 2023, to which Plai...

Excerpt: ...us and cause for its denial". (Cal. Rules of Court, rule 3.1113, subds. (a)-(b).) Additionally, on the court's own motion, the court vacates the entry of default on January 19, 2023. Plaintiff's proof of service of the summons and complaint, on a Judicial Council form that explicitly instructs the user "not [to] use this form to show service of a summons and complaint", establishes a failure to satisfy statutory requirements for service of a summ...

Excerpt: ...00 case management fee on February 7, 2023, Page 3 of 3 due upon receipt or no later than 30 days from the date of the invoice. On March 3, 2023 a reminder was sent by AAA to Defendant and the message was relayed to the person responsible for approving large expenditures; however, he was on vacation and did not respond to Defendant's general counsel until March 7 with the approval. However, the payment was not issued. On March 14, 2023, AAA sent ...

Excerpt: ...e deposition was unilaterally set, which is incorrect. In fact, Plaintiff's counsel requested dates on which Steve Circosta would be available, but Defendant's counsel failed to respond. Decl. of David Perkins, "11.) In response, Plaintiff's counsel extended an offer to meet and confer which was unsuccessful. The Court notes that the deposition notice was already for a remote deposition and Plaintiff indicated to defense counsel that the depositi...

Excerpt: ....P. 5685.040. The underlying judgment here includes an award of attorneys fees authorized by contract, so this condition is met. The attorneys fees incurred by MEOW Y. LOH and LEE H. TAY LOH ("Landlords") in defending the ex parte application and then motion to set aside the default judgment filed by defendant/judgment debtor AMARILLO COLLEGE OF HAIRDRESSING, INC., dba Milan Institute of Cosmetology ("Tenant") also appear to have been incurred in...

Excerpt: ... complaint alleges that Decedent, Plaintiff's seventeen-year-old son, was a student with disabilities and special needs at Defendant's school. Plaintiff alleges that Defendant failed to supervise Decedent, who while unsupervised suffered an episode of seizures leading to hospitalization and then death on September 25, 2021. Scope of Subpoenas. Defendant's subpoenas to UCSF seek (1) "Any and all medical documents, paper and digital records pertain...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...dant filed no responsive pleading in this action identifying an address of record. Despite the statement of the 3420 Holsclaw Road address Plaintiff used for notice of this motion in the presented settlement agreement between the parties, it is not sufficiently clear to the court that Defendant has received notice of this proceeding. Furthermore, Plaintiff's motion does not clearly explain the credits to which Defendant is entitled against the ju...

Excerpt: ... discovery issues out resorting to a motion to compel further responses. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424 (Obregon) [factors include complexity of discovery issues, history of counsel in prior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline to file motion was not sufficient...

Excerpt: ...d due to a defective golf car. Plaintiff has stated that he does not oppose this motion. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (Code Civ. Proc., S 437c, subd. A summary judgment motion is pro#rly granted where the evidence in support of the moving party would be suffcient to sustain a judgment in his favor and his opponent does not show facts s...

Excerpt: ...ver, a constitutional or statutory provision must identify a clear, nondiscretionary duty to act upon the facts alleged or an abuse of discretion in how [respondent] chose to act" and a petition must "show that there is some specific statutory mandate that was violated by the [public entity]." (In re Dohner (2022) 79 Cal.App.5th 590, 598-599, internal quotations and citations omitted.) Petitioner has not established that Respondent owed a clear, ...

Excerpt: ...intiffs' father ("Decedent") was an elder in Defendant's care and suffered injury and death due to Defendant's understaffing of its care facility. Defendant allegedly misrepresented its CMS star rating to Plaintiffs to entice them to place Decedent in its care. Legal Standard on Demurrer. "The function of a demurrer is to test the sufficiency of the complaint as a matter of law." (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413,...

Excerpt: ... discovery issues out before resorting to a motion to compel further responses. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424 (Obregon) [factors include complexity of discovery issues, history of counsel in prior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline to file motion was not suf...

Excerpt: ...r malicious, including leaving Decedent "to regularly sit in his fecal matter unattended such that he endured a bi-lateral pressure ulcer on his coccyx for years", "fail[ingl to provide Mr. Bellalda with adequate nutriton and hydration, such that he became anemic and critically dehydrated", failing to clean or bathe Decedent properly such that he developed "multiple pressure ulcers, which became gangrenous and septic", and failing to "maintain ge...

Excerpt: ... Defendant, was assaulted by train passenger Susanna Campos and her daughter Angie Campos, who was waiting for Susanna at Suisun Station. Objections to Evidence. In ruling on a motion for summary adjudication the court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc„ S 437c, subd. (q).) The court finds the first two of Defendant's three objections to Plaintiff's evidence im...

Excerpt: ...on for wrongful termination in violation of public policy is denied. "When a plaintiff alleges retaliatory [or discriminatory] employment termination either as a claim under the FEHA or as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable i...

Excerpt: ...rnia Environmental Quality Act (the "CEQA"). additionally moves to dismiss the petition on the same grounds upon which he bases his demurrer. The court takes judicial notice under Evidence Code section 452, subdivision (c) of Exhibit A, constituting the notice of exemption stating the categorical exemption of U-18-01-MR1 from the CEQA filed May 5, 2022. The petition was filed on July 26, 2022. Public Resources Code section 21157, subdivision (d) ...

Excerpt: ...cation. (NBC subsidiary (KNBC-TV), Inc. v. superior court (1999) 20 cal.4th 1178, 1208; Mercury Interactive Corporation v. Klein (2007) 158 Cal.App.4th 60, 84.) Accordingly, a court record must not be filed under seal without a court order. (Cal. Rules of Court, rule 2.551(a).) Such an order must not be based solely on the agreement of the parties. (Cal. Rules of Court, rule 2.551(a).) A party seeking the sealing of a court record must file a wri...

Excerpt: ... importance of discouraging multiple litigation designed solely to harass an adverse party", "avoiding unseemly conflicts with the courts of other jurisdictions", and "whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced." (Thomson v. Cont'l Ins. Co. (...

Excerpt: ...hoice along with the test materials and raw test data. Plaintiffs have conceded that there is good cause for the mental examinaton. (Code Civ. Proc. S 2032.320(a).) The only dispute between the parties is whether disclosure of copies of the tests administered and raw test data should be limited to an expert neuropsychologist of Plaintiffs' choice or whether disclosure may be made directly to Plaintiffs' counsel in light of Dr. Roberts' professed ...