Excerpt: ...��COCA‐COLA”) and Defendant RANDSTAD US, LLC. (“RANDSTAD”) in connection with his employment at a COCA COLA packing plant between October 2018 and March 2019. APODACA alleges he was a temporary employee hired through RANDSTAD's Fairfield office to work at the plant located in American Canyon. On February 7, 2020, RANDSTAD filed the instant demurrer and motion to strike. That same date, COCA‐COLA filed its special demurrer, demurrer and ...

Excerpt: ...ICH is overruled. Legal Standard. 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 or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with...

Excerpt: ..., based upon Defendants' opposition agreeing to a limited resumption. The court is also concerned regarding the apparent failure of defense counsel to provide the PMK with timely notice of the demand for production of documents to ensure production of new documents responsive to any requests generated between 2018 and the date of deposition. It appears that counsel acknowledged that records pertaining to sales of houses and a check register were ...

Excerpt: ...ees other than the amount of $1,520.00. The two other types of costs challenged by this motion appear in the “other” category, and consist of $2,549.47 in RecordTrak billings, and $67,274.80 in expert fees. RecordTrak billings reflect the equivalent of subpoenas to obtain records. Plaintiff fails to establish that the billings are simply photocopy fees. Fees incurred to subpoena records are recoverable. (Naser v. Lakeridge Athletic Club (2014...

Excerpt: ...ainst Defendant in federal court. Defendant additionally demurs to the complaint. Defendant's motion to dismiss as to Plaintiff GRACIELA SANCHEZ is granted. Defendant's motion to stay as to Plaintiff MAULID AMBARY is granted. The Court does not reach Defendant's demurrer. The Court takes judicial notice of Graciela Sanchez v Abbott Laboratories, Solano County Superior Court Case No. FCS054734, filed on May 4, 2020 and removed to federal court on ...

Excerpt: ...ees other than the amount of $1,520.00. The two other types of costs challenged by this motion appear in the “other” category, and consist of $2,549.47 in RecordTrak billings, and $67,274.80 in expert fees. RecordTrak billings reflect the equivalent of subpoenas to obtain records. Fees incurred to subpoena records are recoverable. (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 577‐578.) The court therefore declines to strike ...

Excerpt: ...s filed on May 31, 2018. On April 24, 2020, Defendant WESTLAKE SERVICES, LLC, filed the instant motion to enter judgment pursuant to a written settlement agreement signed December 17, 2019. That settlement agreement includes release terms and a promise that Plaintiff would dismiss WESTLAKE in exchange for certain payments. WESTLAKE submits supporting declarations indicating that the promised payments were made, but that Plaintiff has failed to di...

Excerpt: ...6:1576.1, p. 6G‐93; see also generally requirements for service of applications for writs of possession and for writs of attachment [C.C.P. §§512.030(b) and 482.070(d), respectively]. The only proof of service filed for this motion on non‐party TERO DEVELOPERS, INC. (“TERO”) claimed service by mail. In addition, insofar as this motion asserted theories of alter ego and successor corporation liability against TERO, neither is adequately ...

Excerpt: ...ode of Civil Procedure section 436, subdivision (a) permits a court to strike out any irrelevant, false, or improper matter inserted in any pleading, upon a motion or in its discretion. Irrelevant matters are those not essential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient Page 3 of 3 claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc. § 431.10.) Plainti...

Excerpt: ...ntative. (Prob. Code § 9351.) Plaintiff admits that he is required to comply with the “detailed procedures and related provisions with respect to claims filed by a creditor against the personal representative of an estate” and that an action may not be commenced unless a claim has been first filed as required by the Probate Code. (4AC, ¶¶ 22‐23.) But, Plaintiff has not alleged any facts suggesting that he has complied. Instead, Plaintiff...

Excerpt: ... of Am. (1997) 59 Cal.App.4th 1192, 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689‐690.) Defendant Geico is awarded additional monetary sanctions from Plaintiffs in the amount of $4,416.50 for reasonable attorneys' fees incurred in opposing this motion. A motion for reconsideration of a discovery order, made without substantial justification and in the absence of any other circumstances making an award of sanctions unjust, is itself sub...

Excerpt: ...ff's motion is granted. As a de novo hearing, the trial court proceeding owes no deference to the Labor Commissioner's decision. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1116 (Murphy).) Review is of the facts presented to the trial court, “which may include entirely new evidence.” (Ibid., citing Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 948.) In light of this, and the fact that an employee need not admin...

Excerpt: ...s fees. (FAC at ¶¶ 46, 62, 72, and 89; Prayer at ¶¶ 2, 3.) Plaintiff is admonished that the prior motion to strike the claim for attorneys' fees was granted without leave to amend. Should defense counsel seek to recover fees and costs associated with Plaintiffs' inappropriate decision to include the stricken fees claim, such recovery can be addressed via a separate motion. Despite the intervening opportunity to engage in discovery, Plaintiffs...

Excerpt: ...court to June 4, 2020. On June 4, 2020, the court continued the above motions on the basis that Plaintiff intended to seek coordination of this action with an allegedly related suit pending in Monterey County Superior Court, Robledo v. Randstad US, LP, (Robledo), Monterey County Superior Court case no. M130588. The court did so to promote judicial economy. The file reflects that on June 3 and 5, 2020, Plaintiff submitted duplicate notices of the ...

Excerpt: ...to the fifth, sixth and ninth causes of action is sustained with leave to amend within 20 days. Defendants' demurrer to the seventh cause of action for nuisance is overruled. Defendants' motion to strike the claim for punitive damages is granted with leave to amend within 20 days. Legal Standard. “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.A...

Excerpt: ...Nolin v. Nat'l Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285‐ 286; see, Food Pro Int'l, Inc. v. Farmers Ins. Exch. (2008) 169 Cal.App.4th 976, 994 [mere carelessness or ignorance does not justify punitive damages].) Conscious disregard alone is insufficient and an award of punitive damages requires either the intent to harm the plaintiff or both willful and despicable conduct. (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5t...

Excerpt: ...portunity to negotiate and reach an agreement. As a result of the package deal, BMO Harris Bank N.A. (“BMO”) received a recovery in connection with its secured interest in the Nissan store and a potential recovery as a junior lien holder to the Toyota store. The parties do not dispute that TMCC holds a valid, perfected senior secured interest in all of the assets which relate to the Toyota store. Intervenor BMO holds the junior lien. The fact...

Excerpt: ...ocha Dehe”), a federally recognized Indian tribal government. (Declaration of Anthony Roberts (Roberts) at ¶¶ 1‐2.) Yocha Dehe enjoys sovereign immunity from suit by default. (Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 760.) Though Yocha Dehe partially waived its immunity when it entered into a compact with the State of California to operate Defendant as a gaming facility, that waiver only permits patro...

Excerpt: ...matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) For purposes of demurrer, a court assumes the truth of the allegations in the complaint, but not the contentions, deductions, or conclusions of law. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contac...

Excerpt: ...head, neck and spine by Dr. Tabaraee, M.D. in Manteca which is 67 miles from Fairfield. Defense shall provide Plaintiff with 3 proposed dates for examination. Plaintiff shall select 1 date among the 3 proposed dates. The examination will be conducted and completed on one day between the hours of 9 and 5 and limited to 4 hours in duration. Plaintiff shall undergo a mental examination related to his claims of short‐term memory loss, difficulty co...

Excerpt: ...ential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc. § 431.10.) Punitive Damages. Civil Code section 3294, subdivision (a) provides that punitive damages are only available in actions not arising from breach of contract if is “proven by clear and convincing evidence that the defendant has been guilty o...

Excerpt: ... firm acting as escrow agent that completed transaction despite instructions from seller to terminate sale].) In this case, Plaintiff alleges that the foreclosure sale was completed May 1, 2018, that Defendant had duty to disburse surplus funds by June 8, 2018 and that, despite no other claimants to the surplus funds, Defendant maintained control of the funds and attempted to condition release of the funds upon dismissal of a suit Page 2 of 3 for...

Excerpt: ...nded. In FCS053677, Plaintiff alleges physical injury due to “excessive force.” On April 29, 2020, the parties appeared via Zoom in FCS053677 for a case management conference one hearing. The parties agreed the cases are related. Based upon that agreement, the court orders the cases to be related. To date, no motion or stipulation has been received by the Court to consolidate the two actions. Parties to appear to address consolidation of the ...

Excerpt: ...th 1228, 1238; DeLeon v. Verizon Wireless, LLC (2012) 207 Cal.App.4th 800, 812.) Defendant concedes that he “did reside in the property for about two years”. (Decl. of Aaron Nguyen, ¶ 3.) And, regardless of whether Defendant can be held liable for breach of the lease agreement, the facts alleged in the complaint give adequate notice that Defendant may be held liable for intentionally or negligently causing damage to real property owned by Pl...

Excerpt: ...nesses and governmental agencies. However, these discovery issues arose prior to declaration of a state of emergency or imposition of shelter in place orders and the discovery has been pending since August 2019. In addition to the multiple extensions, the court also considered Defendant's delay in responding to Plaintiff's December 2, 2019 meet and confer letter and the contents of Defendant's February 12, 2020 meet and confer letter. A. Motion t...

Excerpt: ...ed for Taylor Venegas and one pro per cannot be represented by another pro per. Further, from the Court's review of the file, it appears that Erika Venegas has executed numerous documents which appear to take action on behalf of Taylor Venegas or may have signed pleadings on behalf of Taylor Venegas. 2. Confirmation of the status of parties' appearance in this suit. Plaintiff Erika Venegas filed dismissals of previously named Defendants. Taylor V...

Excerpt: ...umption of those beverages. (Civ. Code § 1714(c).) The sole exception to this general rule of nonliability is when a “parent, guardian, or another adult … knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age”. (Civ. Code § 1714(d); Rybicki v. Carlson (2013) 216 Cal.App.4th 758, 764.) The term “furnish” requires an affirmative act to “to su...

Excerpt: ...ect is capable of cure and public policy favors great liberality in permitting amendment. (Aubry v. Tri‐City Hospital District (1992) 2 Cal.4th 962, 970‐ 971; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) Plaintiff has made a plausible case that it can plead sufficient facts to establish HOISETH's potential liability. HOISETH's demurrer is sustained in its entirety with leave to amend. Plaintiff shall have thirty days from the date of he...

Excerpt: ...DeLeon v. Verizon Wireless, LLC (2012) 207 Cal.App.4th 800, 812.) Defendant concedes that he “did reside in the property for about two years”. (Decl. of Aaron Nguyen, ¶ 3.) Plaintiff alleges that each Defendant is the agent, employee, member, partner, principal, director, officer, heir, representative and/or joint venturer of the other. (Complaint, ¶ 5.) The undisputed evidence presented by Plaintiff supports this allegation. And, regardles...

Excerpt: ...g, upon a motion or in its discretion. Irrelevant matters are those not essential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc. § 431.10.) Punitive Damages. Civil Code section 3294, subdivision (a) provides that punitive damages are only available in actions not arising from breach of contract if is “p...

Excerpt: ...aintiff's complaint identifies causes of action against the State for negligence, intentional tort and professional malpractice. (Complaint, par. 10.) On the face of the complaint, Plaintiff also checked the box “other” and typed in the words “wrongful assement [sic].” Other than attaching letters from 2018 regarding a 2014 tax assessment, Plaintiff makes no factual allegations at all. Significantly, Plaintiff does not allege compliance w...

Excerpt: ...de Civ. Proc. § 512.060(a).) Because Defendant has no interest in the property, the requirement of Plaintiff's undertaking is waived. (Code Civ. Proc. § 515.010(b).) Should Defendant wish to prevent Plaintiff from taking possession of the property, it may file with the court an undertaking in the amount of $11,345.51 to cover potential costs and damages that may be sustained as a result of Plaintiff's failure to gain possession. (Code Civ. Proc...

Excerpt: ...nts, and bank statements. Plaintiff has failed to produce any such documents or state that any such documents do not exist. As to number 30, Plaintiff must state what documents, if any, she submitted to Medi- Cal. If no other documents aside from profit and loss statements were ever provided to Medi-Cal, Plaintiff must so state. Plaintiff shall provide such responses and responsive documents, without objections, by May 4, 2020. Defendants are awa...

Excerpt: ...vantaged due to the court's prior notice of continuation, including the failure to file any necessary pleading during the period of emergency operations, in the event the parties are unable to appear, the hearing is continued to June 4, 2020. The court will provide notice and will repost its tentative ruling on June 3, 2020. Due to the length of this tentative ruling and the number of matters to be heard, a separate Zoom appointment will be email...

Excerpt: ... this judgment since 2010 when his wages were first garnished. Defendant was also on notice of the 2018 renewal of the judgment. Defendant fails to explain the unreasonable delay in seeking relief from the default. Due to the COVID‐19 emergency and orders to shelter in place, the court previously announced the intent to continue all civil matters through May 1, 2020. To ensure that no party has been disadvantaged due to this prior notice of con...

Excerpt: ... this judgment since 2010 when his wages were first garnished. Defendant was also on notice of the 2018 renewal of the judgment. Defendant fails to explain the unreasonable delay in seeking relief from the default. Due to the COVID‐19 emergency and orders to shelter in place, the court previously announced the intent to continue all civil matters through May 1, 2020. To ensure that no party has been disadvantaged due to this prior notice of con...

Excerpt: ... in which she could cure this defect, the court provided Plaintiff with an opportunity to amend to specifically plead facts as to why the action is not barred by the statute of limitations. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) Plaintiff's FAC adds two paragraphs of allegations to address why her case is not time‐barred. Plaintiff alleges that: 1) Defendant requested information on the incident, notified Plaintiff that the ma...

Excerpt: ...filed in Solano County Superior Court on June 6, 2018, on behalf of Plaintiff JILLIAN WILSON in connection with medical care and treatment she received from Defendants KAISER FOUNDATION HOSPITALS et al. (collectively “KAISER”). At the time the suit was filed, an arbitration had already been initiated by Plaintiff on her claims of professional negligence or medical malpractice following submission of Plaintiff's written demand for arbitration ...

Excerpt: ...s the causes of action for “all defendants” which involve different contracts with different defendants and different alleged forms of breaches into a single cause of action for breach of contract. By incorporating by reference, using generic terms, and by failing to allege with specificity, Plaintiff's complaint is unnecessarily difficult to follow. However, a special demurrer for uncertainty is not intended to reach the failure to incorpora...

Excerpt: ...ranted. Defendant's claimed costs for subpoenas for medical, long term care, and school records are an “investigation expense” that cannot be shifted. (Code of Civ. Proc. § 1033.5, subd. (b)(2).) Plaintiffs motion to tax costs for filing fees and courier service is granted and denied. As the prevailing party, Defendant is entitled to recover filing fees. However, the numbers cited by Defendant are inconsistent with the schedule of filing fee...

Excerpt: ... not taken further action to perfect notice to the court of any stay triggered by a bankruptcy. On October 15, 2019, Defendant represented to the court that Plaintiff had filed for bankruptcy on October 11, 2019, and therefore this suit was stayed. No evidence had been presented to the court of any bankruptcy filing. Plaintiff acknowledges filing for bankruptcy, but represents that that bankruptcy filing was dismissed December 12, 2019, and that ...

Excerpt: ... summary judgment” filed on February 22, 2019 in case number 2:17‐cv‐01313‐WBS‐DB, provided as Exhibit A of Defendant's request for judicial notice. In the federal action filed by Plaintiff against Defendant, the district court granted summary judgment in favor of Defendant. (RJN, Exh. A, p. 15.) In making this determination, the district court concluded that Defendant Tan arrested Plaintiff “pursuant to a reasonable belief that there...

Excerpt: ...tober 25, 2019. The motion was filed November 15, 2019. The motion should have been finalized at the conclusion of the submission of evidence and/or raised prior to the court taking this matter under submission effective October 25, 2019. Second, Plaintiff did not disclose this claimed injury, damages or theory of recovery through discovery. Although the city was aware of the code enforcement citation that was apparently produced through discover...

Excerpt: ...to the Complaint based largely on the same arguments, but provided Plaintiff the opportunity to amend. In the interim, Plaintiff filed and served a First Amended Complaint, but after meeting and conferring with Defendants about alleged defects, voluntarily filed and served a Second Amended Complaint. Given the significant delay and many opportunities to amend, where the previously identified defects are repeated without correction, no further lea...

Excerpt: ...ranted. Defendant's claimed costs for subpoenas for medical, long term care, and school records are an “investigation expense” that cannot be shifted. (Code of Civ. Proc. § 1033.5, subd. (b)(2).) Plaintiffs motion to tax costs for filing fees and courier service is granted and denied. As the prevailing party, Defendant is entitled to recover filing fees. However, the numbers cited by Defendant are inconsistent with the schedule of filing fee...

Excerpt: ...r Court (1975) 49 Cal.App.3d 22, 29.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “[T]he act of operating a motor vehicle while intoxicated may constitute an act of ‘malice' under section 3294 if performed under circumstances which disclose a conscious disregard...

Excerpt: ...r Court (1975) 49 Cal.App.3d 22, 29.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “[T]he act of operating a motor vehicle while intoxicated may constitute an act of ‘malice' under section 3294 if performed under circumstances which disclose a conscious disregard...

Excerpt: ...izes a party to move for summary adjudication “as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty”, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty”. Here, BMO HARRIS BANK, N.A. (“BMO”) seeks summary adjudication of 2 different types of breach of c...

Excerpt: ... an appeal on behalf of a corporation. Further, the amounts due from Luv Care, Inc. were not properly posted as security to perfect a timely appeal. Judgment shall be entered on behalf of Respondent against Luv Care, Inc. pursuant to the Labor Commissioner's decision. Respondent's unopposed motion to dismiss the individual appeal of Shobha Kothapalli is denied. While it appears that Ms. Kothapalli may have attempted to represent the interests of ...

Excerpt: ...defendants. The sole allegation against Defendant Lofas is that he is a resident of Vallejo. (SAC, ¶ 5.) The sole allegation against Defendant Estate of Jean Lofas is that it is domiciled in Vallejo. (SAC, ¶ 6.) Plaintiff has not made any factual allegations concerning Defendant Rentschler. Defendants' demurrer against the first cause of action for elder abuse, second cause of action for assault, third cause of action for battery, fourth cause ...

Excerpt: ...AVID ALLEN should defendant KELSA GENTRY terminate the contract, as she did. The parties agreed to payment based on the time spent multiplied by the hourly rate of every person who worked on the case, and no more. (See Defendants' Compendium of Exhibits, Exhibit 7). Therefore, the court may find, as a matter of law, that plaintiff is entitled to this amount only. Although plaintiff suggests that its retainer agreement with GENTRY is void because ...

Excerpt: ...s overruled as to the second cause of action for interference with prospective economic advantage, third cause of action for interference with contract, fifth cause of action for unjust enrichment, and sixth cause of action for violation of the Unfair Competition Law. Plaintiffs have adequately alleged facts supporting the material elements of these causes of action. Defendants' demurrer to the eighth cause of action for violation of the Rosentha...

Excerpt: ...NC. are granted. Plaintiff DOUGLAS STROBEL has been diagnosed with mesothelioma. JOANN STROBEL is DOUGLAS STROBEL's wife and sues Defendants for loss of consortium based upon the same underlying theories of liability relied upon by her husband. Plaintiffs' complaint alleges that Plaintiff developed mesothelioma as a result of his exposure to asbestos fibers found in cosmetic talc powder. Plaintiff frequently used Johnson's Baby Power (“JBP”) ...

Excerpt: ...pon the service of a set of requests for production of documents, the party targeted by those requests has 30 days to serve responses, and to produce responsive documents. C.C.P. §2031.260. However, that deadline can be extended by the propounding party, as long as the agreement to extend is “confirmed in a writing that specifies the extended date . . . .” C.C.P. §2031.270(a),(b). USRECH here extended in a writing BMO's deadline for respons...

Excerpt: ...S. REAL ESTATE CREDIT HOLDINGS III, LP (“USRECH”) are overruled, in their entireties. A cause of action based upon a breach of a contract accrues at the time the breach causes damage to the plaintiff. BAJI 10.85 [identifying damages caused by the breach as an element of a breach of contract action]; San Francisco Page 2 of 3 Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1335 [“In California, no cause of action accrues...

Excerpt: ...e the administrative agency”]. C.C.P. §1094.5(e) provides an exception to this rule, authorizing the court to also consider relevant evidence which was either improperly excluded from the administrative record, or that could not have been produced in the exercise of reasonable diligence, by the party now attempting to rely upon it. Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not ha...

Excerpt: ...r a corporate employer, “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Ibid.) A managing agent is not merely a supervisor with the ability to hire and fire employees, but must be in a position to “exercise substantial discretionary authority over decisions that ultimately determine corporate p...

Excerpt: ...and the filing of her cause of action, Defendant has established as a matter of law that the action as to Defendant ZHU is time‐barred. Under CCP §437c(p), the burden of proof shifts to plaintiff to establish there remains a triable issue of material fact. Plaintiff has not met this burden. Plaintiff contends that under the doctrine of equitable estoppel, defendant may not assert the one‐year statute of limitations defense of CCP §340.5 bec...

Excerpt: ...ve the joint venture, the court could not summarily adjudicate the second cause of action for money owed or the third cause of action for dissolution. Therefore, the court cannot grant summary judgment. As to the first cause of action for specific performance, the undisputed facts are that this oral agreement was not a joint venture agreement to share profits in a real estate transaction that may avoid the statute of frauds. Rather, it was an agr...

Excerpt: ...records and radiology records are to be limited in scope to only those records relating to plaintiff's claimed injuries and conditions arising from the incident. According to plaintiff's interrogatory responses, these are injuries to plaintiff's cervical spine, which have resulted in neck pain and nerve pain, and which affects plaintiff's neck and spine, right arm, triceps, right hand and fingers, right shoulder blade, upper back, and right eye; ...

Excerpt: ...sed it in their home in California on a regular basis, and that this resulted in DOUGLAS STROBEL being exposed to the ingredients of the powder, allegedly to his detriment. Thus, plaintiffs have established that there is a sufficient connection between plaintiffs' claims and California for this court to find specific jurisdiction over COLGATE‐PALMOLIVE in this case. Evidence that the talcum powder contained asbestos is not necessary for determi...

Excerpt: ...records and radiology records are to be limited in scope to only those records relating to plaintiff's claimed injuries and conditions arising from the incident. According to plaintiff's interrogatory responses, these are injuries to plaintiff's cervical spine, which have resulted in neck pain and nerve pain, and which affects plaintiff's neck and spine, right arm, triceps, right hand and fingers, right shoulder blade, upper back, and right eye; ...

Excerpt: ...d. The information set forth in the application for preliminary injunction is stale given these representations in open court. At that same hearing, the court expressed that Plaintiff's submissions were sufficient for a TRO but inadequate for a preliminary injunction due to the lack of supporting and corroborating evidence related to Plaintiff's claims. A restraining order to prohibit a non‐judicial foreclosure from proceeding is highly disfavo...

Excerpt: ...lege sufficient facts indicating how LIBERTY MUTUAL entered into an oral agreement with plaintiff and the terms of the alleged oral agreement are uncertain. Conclusory terms such as “scope of work,” “cost estimate,” and “not to exceed $450,000.00” are not sufficient. (For example, no scope of work allegedly prepared by LIBERTY MUTUAL is incorporated as an exhibit into the complaint.) The complaint also does not allege facts indicating...

Excerpt: ... the continued co‐ownership, management or operation of … Pacific Palisades” to a special master, who was authorized to “decide the disputed matter and direct the implementation of his decision.” (Decl. of Strauss, Exh. A, ¶ 1.11.)1 Somewhat in contradiction, the parties also agreed that a trustor could immediately apply to the family law court to seek removal of Ed Biggs as manager of the properties in trust upon a showing of “good ...

Excerpt: ... these representations in open court. A restraining order to prohibit a non‐judicial foreclosure from proceeding is highly disfavored, especially when the property is a commercial or investment property as in this case. (See, Jessen v. Keystone Sav & Loan Assn. (1983) 142 Cal.App.3d 454, 457‐458.) Evidence supports a finding that Plaintiff has defaulted on payments to her mortgage lender for the commercial properties in a manner that is not w...

Excerpt: ...itration award for inclusion of costs under C.C.P. §998 is denied. Any error of law made by the arbitrator in the course of binding arbitration concerning a C.C.P. §998 costs claim is not subject to correction by the court. (Heimlich v. Shivji (2019) 7 Cal.5th 350.) MERITAGE's motion for sanctions under CCP §128.7 is granted, as the court has been able to now confirm that this motion was timely served on Plaintiff's counsel consistent with the...

Excerpt: ... Enterprises (“BME”) originally set on June 11 and continued on the court's own motion to July 23; 2) Cross‐Defendant BME's motion for attorneys' fees set July 12; 3) Cross‐complainants Owen and Silvermark's motion (and amended motion) to strike and tax costs claimed by Cross‐defendant BME set July 23; 4) Plaintiff BME's motion to strike or tax costs of Defendants Owen and Silvermark set July 23; 5) Defendant Owen's motion for contractu...

Excerpt: ...y explaining why the objections are not meritorious or how the discovery request could be modified such that it is acceptable. The court reserves jurisdiction over sanctions to both parties due to the failure to meet and confer. Further, Plaintiff fails to separately state the motions which should be filed and scheduled separately rather than as an omnibus motion. In the future, the court may strike a combined discovery motion. Plaintiff's motion...

Excerpt: ...on is untimely in that it was filed more than five years after the Notice of Decision was issued and delivered to petitioner, which is well over the 60‐day time period set out in Government Code §13960(a)(1). The VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD also filed the demurrer on the ground that the petitioner has not lodged the administrative record with the court. Although this may be a ground for a judgment against petitioner for fai...

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: ...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: ... 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: ...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: ... 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: ...benefits, records related to workers compensation claims and medical records. Given the nature of the scope of damages, it is appropriate for Defendants to seek records directly from Plaintiff's employer related to his physical capacity to perform his job. Defendants have adequately established good cause for in camera review of Plaintiff's personnel records to the extent that they might contain information relevant to his claim of personal injur...

Excerpt: ...8.5. Motion for Attorney's Fees Plaintiff's motion for attorney's fees, costs and expenses is granted in part. Plaintiff's billed hours generally appear reasonable and do not appear to be contested on a task‐based basis by Defendant. The court reduces the hours billed which includes 2 hours for the motion for sanctions. The hourly rates for Mr. Mikhov exceed typical rates for Solano County and are reduced to $500 per hour, which is consistent w...

Excerpt: ...ff, other than the attachment of the deed of trust, notice of default, notice of trustee's sale and trustee's deed. (FAC, Exhs. A‐D.) A complaint must allege “ultimate facts,” not merely conclusions. With respect to the first cause of action, the First Amended Complaint (“FAC”) fails to allege sufficient facts to state a violation of Civil Code §2923.5. Plaintiff's declaration recorded with the Notice of Default establishes compliance ...

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: ...INTAGE CONTRACTORS or of the facts rendering VINTAGE CONTRACTORS liable. Therefore, it is not clear from the complaint that the “relation back” doctrine would not apply or that the action would be barred by the two‐year statute of limitations of CCP Section 335.1, as Defendant contends. Allegations that Defendant PAZ had a load in his truck at the time of the collision are not sufficient in this regard. Nor are the standard boilerplate alle...

Excerpt: ... and recording of the three lis pendens. Defendant is an incorporated business engaged in the purchase and sale of real property. (Complaint, ¶ 3.) Plaintiff is an officer and director for the corporation. (Complaint, ¶ 1.) Plaintiff's lawsuit was filed December 4, 2018, and the lis pendens were filed and recorded December 5, 2018. At the time the complaint was filed, Defendant was in escrow for the sale of one of the properties which was the s...

Excerpt: ...he “lower” portion of St. John's Mine Road from Columbus Parkway which runs adjacent to parcels APN 182‐020‐070, 182‐020‐ 060 and 182‐020‐130 to the line of parcel 182‐010‐060 (i.e. from the first cattle guard to the second cattle guard) is a public roadway. (UMF No. 5.) The parties agree that the “lower” portion of St. John's Mine Road was made a public roadway by virtue of a 1938 express offer to dedicate a public roadwa...

Excerpt: ...le issue of material fact as to whether the medical treatment and advice provided to plaintiff ESTELLA PETERMAN by Defendant MOJADDIDI was below the standard of care for a health care provider and whether any such breach of the standard of care by MOJADDIDI was a substantial factor in causing ESTELLA PETERMAN injury. With regard to breach of the standard of care, Defendant submitted the declaration of his expert, Dr. Martin Bronk, in which Bronk ...

Excerpt: ...LFIN and MHHHS); and 3. Fraud (against SANTOS, TS GLOBAL, and MHHHS). Defendant DELFIN's demurrer to the first cause of action for breach of contract is sustained with leave to amend. Defendant DELFIN and MHHHS's demurrer to the second cause of action for common counts is denied. Defendant MHHHS's demurrer to the third cause of action for fraud is granted without leave to amend. Page 3 of 4 Breach of Contract The function of a demurrer is to eval...

Excerpt: ...of privilege are inapplicable, the interrogatories are not duplicative of previous interrogatories and plaintiff's answers were unresponsive. Plaintiff has placed the existence of her disability in dispute by filing this suit and Defendant is entitled to engage in directed discovery related to her claim. Further, Defendant is entitled to discovery as to whether Plaintiff has mitigated her damages or whether she has been prevented from doing so du...

Excerpt: ...tiffs here sought to compel arbitration, against both the car dealer RAHIM HASSANALLY dba Momentum Chrysler Dodge Jeep Ram of Fairfield (“HASSANALLY”), and lender/holder TRAVIS CREDIT UNION (“TCU”). On March 15, 2019, Plaintiffs dismissed their claims against HASSANALLY. In general, arbitration can be enforced only if there is an agreement to arbitrate which applies to all of the parties against whom arbitration is sought to be compelled....

Excerpt: ...matter. Ultimately, the parties recited a settlement agreement on the record through their respective attorneys with the assistance of the court. Although Plaintiff failed to provide the reporter's transcript of the settlement agreement, the court independently recalls directly asking Plaintiff whether this was her agreement and whether she understood the agreement and Plaintiff affirmatively acknowledging her understanding and stating her agreem...

Excerpt: ...ing the certification of defendant ZHU as a “massage practitioner” (Exhibit A), the request is denied under Evidence Code Sections 452 and 453. These internet search results are not subject to judicial notice, and for the purposes of demurrer, do not conclusively establish that defendant was licensed and was a “certified massage practitioner” at the time of the incident on June 4, 2017. Defendant ZHU is to file an answer to the complaint ...

Excerpt: ...nment of judgment with the court in October 2016, signed by the president/chief operating officer of DUTRA CONSTRUCTION CO., INC. (“DUTRA”). The notarized assignment specifically identifies GARCIA by name (and her dba) as the assignee authorized to “recover, compromise, settle and enforce said judgment at its [sic] discretion”. Once the acknowledgment of assignment is filed with the court, the assignee has standing to proceed to enforce t...

Excerpt: ...no requirement for body‐to‐body contact, the unwanted touching must have been set in motion by the defendant's actions. (Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 884.) In this matter, the unwanted touching was carried out by bedbugs. Unlike an instrument, such as a dog, there is no allegation that the touching by the bedbugs was set in motion by Defendants or the result of training or direction of the Defendants. Plaint...

Excerpt: ...fficient claim and is supported by a sufficient prima facie showing of facts to sustain a favorable judgment if evidence submitted by Plaintiff is credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Plaintiff has established that Defendant made false statements in a public forum indicating that Plaintiff was fired from his position as principal at Vaca Pena Middle School for sexual harassment. To prevail, Plaintiff must e...

Excerpt: ...excluded from the administrative record, or that could not have been produced in the exercise of reasonable diligence, by the party now attempting to rely upon it. With respect to the email from Mayor Patterson dated March 26, 2017, no explanation is provided as to why this item was not produced at the hearing on March 28, 2017 or “rehearing” on January 16, 2018, given it was in the possession of petitioner's counsel and petitioner had moved ...

Excerpt: ...was threatened with revocation of its conditional use permit (“CUP”) by a member of city staff, and that a revocation hearing was scheduled, but fails to allege that a revocation hearing was actually conducted or any action actually taken by the City to revoke Plaintiff's CUP. The scheduling of a revocation hearing without further action by the City does not constitute a taking by Defendant and does not support a cause of action for inverse c...

Excerpt: ...inds that the settlement agreement is enforceable under CCP Section 664.6 because: (1) the terms of the agreement indicate that it is enforceable; (2) the agreement contains all of the material terms to which the parties agreed; and (3) the agreement does not require performance by a third party (such as KTS Professional Services, Inc.), as defendants contend. The court finds, however, that the amount of the stipulated judgment, $240,000.00, bear...

Excerpt: ...previously filed with a court in order to provide those copies to his appointed attorney. However, Saldana fails to identify a statute, regulation or policy which mandates that CDCR make copies of documents in the personal possession of an indigent inmate at CDCR expense when that inmate is represented by counsel. Petitioner's opposition does not identify in what manner, if any, Petitioner can amend the petition to cure this defect. The demurrer ...

Excerpt: ...nowledging he had not made any efforts since his attorney was relieved on September 28, 2018. During the hearing, Mr. Clemons indicated he was not opposed to the dismissal of Defendant Daniel Tuning. Based upon the counsel's representation of an oral settlement agreement to dismiss Mr. Tuning, all material terms of which have been performed by Mr. Tuning, circumstantial evidence which supports such agreement, and Mr. Clemons' verbal agreement to ...

Excerpt: ...efendants. To the extent that Meyer Corporation asserts that it is a third party and not subject to the order compelling discovery matters to be resolved by the discovery referee, Meyer Corporation must establish an Page 3 of 9 agreement by Defendants to accept electronic service. Accordingly, the motion is denied without prejudice. Motion for Reconsideration Defendants' motion for reconsideration of this Court's order denying Defendants' prior m...

Excerpt: ...s to act pursuant to this section.” (Civ. Code § 2934a(d).) “‘Conclusive evidence' cannot be contradicted by any evidence to the contrary.” (Ram v. OneWest Bank (2015) 234 Cal.App.4th 1, 16.) Plaintiffs cannot state a cause of action for violation of Civil Code section 2923.5(a)(2). Plaintiffs admit that they had filed a prior action against Defendant Ocwen claiming that Ocwen had breached a Trial Payment Plan by failing to offer a perma...

Excerpt: ....) Plaintiff has consistently alleged that Defendant Newell took the position that Plaintiff caused the damage to the vehicle after the sale and that her allegations against Defendant are limited “[t]o the extent that this Court determines that Plaintiff did in fact cause the damage on the Vehicle after the purchase”. (Complaint, ¶¶ 30, 102.) Although Plaintiff reordered her allegations to make her claims against Defendant the first and sec...