Excerpt: ...r from either Plaintiff's motion or Michelle Lim's declaration, or from Defendant's opposition or Sat Sang Khalsa's declaration that there was ever an actual agreement to stay discovery. Lim did not submit any emails or letters between the attorneys, although she referred to them in her declaration. Khalsa submitted some emails. Neither party submitted any emails or letters relating to or responding to the February 15, 2022 email from Lim to Khal...

Excerpt: ...tentional, willful, or fraudulent are insufficient. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; G.D. Searle & Co. v. Superior 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 int...

Excerpt: ...rnia v. Superior Court (2018) 29 Cal.App.5th 890,903); Ford Motor Company v. Superior Court (1981) 120 Cal.App.3d 748, 751‐753. However, punitive damages can be recovered in a survivor action, filed by a successor in interest to the deceased person who if alive would have a proper basis for asserting a punitive damages claim. C.C.P. §377.34 authorizes a successor in interest action to recover “the loss or damage that the decedent sustained o...

Excerpt: ...t inducement of a sales contract for a car (the “Vehicle”) that contained a serious latent manufacturing defect (the “Engine Defect”). 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 ...

Excerpt: ...he Requests for Production shall be served and responsive documents produced within 30 days of service of this order. Defendant served its Form Interrogatories, Set One, Special Interrogatories and Requests for Production on Plaintiff on September 29, 2022. Responses were due on October 11, 2022. No responses were received, nor was a request for extension made by the due date. Unverified responses were served to the Form Interrogatories and Reque...

Excerpt: ...dical Treatment and Active Labor Act (the “EMTALA”), negligence per se, premises liability, wrongful death, as well as MITCHELL's cause of action against it for negligent infliction of emotional distress. Plaintiffs' complaint concerns SUTTER's alleged acts and omissions relating to the death of their son Daimon Ferguson (“Decedent”) on September 3, 2020. The court has not received opposition to the motion. Legal Standard. A defendant may...

Excerpt: ... party requesting relief stating 1) what application was made, 2) when and to what judge, 3) what order or decision was made, and 4) what new or different facts, circumstances, or law are claimed to be shown. (Code Civ. Proc. § 1008(a).) A violation of the requirements of the motion for reconsideration may be punished as a contempt and may incur monetary sanctions. (Code Civ. Proc. § 1008(d).) Page 3 of 4 A motion for reconsideration must be ba...

Excerpt: ... court “shall award to the plaintiff reasonable attorney's fees” when it has been “proven by a preponderance of the evidence that a defendant is liable for financial [elder] abuse”. (Welf. & Inst. Code § 15657.5(a).) Defendant does not claim that the parties agreed to a fee shifting term to enforce either the partnership or the settlement contracts (Civ. Code § 1717) and does not identify any statute or contractual agreement providing f...

Excerpt: ...nancial records. Ameri‐Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1289 [suggesting in dicta that tax returns are not discoverable]; Sav‐On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1 [interrogatories improperly sought information about specific deductions claimed on state sales tax returns]. The California Supreme Court explained that special protections were given by the California legislature (now at Revenu...

Excerpt: ...rden of establishing each element of the two breach of guaranty causes of action and the cause of action for fraudulent conveyance. (Code Civ. Proc. § 437c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) The essential elements for a breach of contract are: 1) a contract, 2) plaintiff's performance, 3) defendant's breach, and 4) damages. (Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 111...

Excerpt: ...beneficiary. In contending that the arbitration clause applies to defendant under the doctrine of equitable estoppel, defendant primarily relies on Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486. However, in that case, the seller (dealer), who was a signatory to the sales contract, had been named as a defendant in the action at the time the court compelled arbitration. In the present case, the dealer has never been named as a defendant. Page 2...

Excerpt: ...perty”) from him under a false representation of GOMEZ's ability to later repurchase the Property from SHARMA and that after the deal was consummated GOMEZ falsely represented that he would maintain the Property for SHARMA. 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 sufficien...

Excerpt: ...n view of the fact that plaintiff's PAGA claim is to be arbitrated, plaintiff lacks statutory standing to maintain this representative PAGA action, and therefore, the action must be dismissed. (Id. at p.1925). The language in the Viking case to this effect is clear. The Court stated: The remaining question is what the lower courts should have done with Moriana's non‐individual claims. Under our holding in this case, those claims may not be dism...

Excerpt: ...esponse should be compelled. CRC 3.1345(c). CRC 3.1345(c) specifically states “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” Page 2 of 2 The separate statement filed in support of this motion did not recite any of the 37 document requests at iss...

Excerpt: ...ing a motion to dismiss as a method to challenge opposing pleadings. Under the Code, dismissal motions are expressly authorized only on specified grounds, including nonjoinder of necessary parties (CCP § 389(b), see ¶ 2:188) and delay in service of summons or prosecution of the action (see CCP §§ 581, 583.110 et seq., discussed in Ch. 11). But several cases hold a motion to dismiss may serve the same function as a general demurrer. Despite la...

Excerpt: ... this action only as to the open book account and account stated common counts. Furthermore, as no cause of action for breach of contract was pled in the complaint, no remedies based upon the loan contract itself are properly sought in this common counts action. Summary adjudication is denied as to the account stated common count. An account stated is an agreement between the parties that a certain sum will be paid and accepted in discharge of an...

Excerpt: ...ut instead by a daughter to whom he had long ago signed a power of attorney to under certain conditions act on his behalf, is binding, and authorized her to consent to arbitration of all claims brought arising out of the care he received from Defendants. The general rule that only parties who signed an arbitration agreement are bound by it is subject to a health care facility exception, such that the signature of the Page 2 of 4 patient or their ...

Excerpt: ...(4); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 857‐858; Ladas v. Cal. State Auto. Ass'n (1993) 19 Cal.App.4th 761, 776.) The court notes that defense counsel's office is located in Irvine and the court does not accept electronic filing. While the option for filing by mail was available, it was not unreasonable for counsel to employ a messenger service to ensure prompt and proper filing of the documents with the court. Page 2 o...

Excerpt: ...mplete verified responses to Request for Production, Set One, without objections, shall be properly served and responsive documents produced within 15 days after the date of this hearing. Plaintiff served Special Interrogatories, Set One, on defendants on June 21, 2022. Also served that date were Requests for Production of Documents. There is no agreement between the parties for electronic service. Responses were therefore due to each set of disc...

Excerpt: ...repeatedly regarding the deposition and the production of documents. The parties engaged in an informal discovery conference in July regarding these topics. Further meet-and-confer took place thereafter and a date was provided. However, plaintiffs' counsel desires an earlier date than the offered dates of November 2, 3 or 4, 2022, because trial is scheduled to commence February 13, 2023. Both attorneys' pleadings contain arguments that have merit...

Excerpt: ...nt is Allstate Northbrook Indemnity Company. Respondent properly noticed an Independent Medical Examination of Claimant Martha A. Block, which took place on January 25, 2022. Dr. Jones prepared a report of the IME and a copy was provided to counsel for Claimants. Thereafter, Claimants' counsel served a subpoena for the production of business records of Dr. Jones, specifically seeking “(a)ll records pertaining to the IME performed on January 25,...

Excerpt: ...o legal requirement for Plaintiff to have filed a cross‐complaint in the proceedings for Defendant's petition for writ of mandate. (See, Code Civ. Proc. § 426.60(a) [“This article applies only to civil actions and does not apply to special proceedings.”]; Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115 [“An application for a writ of administrative mandamus is a ‘special proceeding of a civil nature'”].) And, the action cannot...

Excerpt: ...ression is defined in the Merriam‐Webster Dictionary, language similar to the definition of oppression found in Civil Code §3294(c)(2). Malice generally requires outrageous conduct by a defendant with evil motive. Henderson v. Security Nat. Bank (1977) 72 Cal.App.3d 764, 771‐772. While evil motive is often alleged, conscious disregard of the probable dangerous consequences of one's actions can also support a punitive damages claim. Hoch v. A...

Excerpt: ...Petitioners cannot demonstrate any prejudice from the untimely filing since the motion was timely served. (Jones v. Goodman (2020) 57 Cal.App.5th 521, 541.) Respondent is entitled to recover “all costs of investigating and prosecuting the action, including expert fees, reasonable attorney's fees, and costs” as the Page 2 of 2 prevailing party in a civil action to enforce relevant sections of the Water Code. (Code Civ. Proc. § 1021.8(a).) But...

Excerpt: ...2, and subject to certain statutory exceptions, worker's compensation is the exclusive remedy to an employee suffering an injury unintended by the employer, in the scope of employment. The rationale behind the workers' compensation exclusivity rule is that most workplace injuries fall within the expected risks of employment, and it is better policy to require an employer to cover those injuries without regard to fault to ensure that employees who...

Excerpt: ...t date, plaintiffs were not present and the court rescheduled the settlement conference to January 6, 2022. On January 6, the court was informed that Mr. Shamieh had passed away a few days earlier. A status conference was set for January 12, 2022, and on that date, the settlement conference was rescheduled to February 14, 2022, a date which was agreeable to both attorneys. On February 14, 2022, Mrs. Shamieh and her attorney participated in the se...

Excerpt: ...handful of cases of importance on when an arbitration provision contained in a handbook constitutes an enforceable arbitration agreement. They focus on matters such as whether the employee signed an acknowledgment of receipt of the handbook which expressly referred to the arbitration provision; whether the arbitration provision is specifically identified in the handbook's table of contents; whether the arbitration provision is highlighted in any ...

Excerpt: ...of a sales contract for a car (the “Vehicle”) that contained a serious latent manufacturing defect (the “Engine Defect”). 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 ess...

Excerpt: ... SHARMA's Motions to Access Property and Expunge Lis Pendens TENTATIVE RULING Page 2 of 3 Defendant and Cross‐Complainant RAJ KUMAR SHARMA (“SHARMA”) moves to expunge the lis pendens filed November 30, 2020 on the real property at 7403 Porter Road, Dixon, CA 95620 (the “Property”). SHARMA also moves to be permitted to access the Property for purposes of performing repairs and showing the Property for sale. The Property is at issue in a ...

Excerpt: ...pp.5th 453, 458.) Plaintiff has not made a showing of inability to meaningfully access the courts. This court previously denied a motion from Plaintiff for appointment of counsel in part because Plaintiff, by his successful maintenance of this case and another in another court department, showed that he enjoyed meaningful access to the courts. Plaintiff has not shown that the situation has changed. Evidence Code section 730 authorizes the court t...

Excerpt: ...nia, including a blood draw. Plaintiff resides in Reno, Nevada. Procedure for Discovery via Physical Examination. Code of Civil Procedure section 2032.220 provides that any defendant in a personal injury case may demand, without leave of court, that the plaintiff submit to one physical examination, so long as the examination is not “painful, protracted, or intrusive” and is not set to take place more than seventy‐five miles away from the pl...

Excerpt: ...er Code of Civil Procedure section 430.30, subdivision (a). The court declines to take judicial notice of JENNIFER's proffered items. The lease between the parties is not a fact or proposition beyond reasonable dispute. Plaintiff's complaint is already a part of the record. 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 ...

Excerpt: ...pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Counsel for Defendant declares that the parties conferred over Plaintiff's original complaint and this process led to the filing of the 1AC. (Declaration of Gregory P. Wayland in Support of Demurrer at ¶¶ 3‐5.) Counsel declares his perception that the 1AC corrects no flaws of the original complaint. (Id. at ¶ 6.) Accordingly, counsel felt that a phone call on May 19, 2022 that was ...

Excerpt: ... efforts to meet and confer to work these issues out before resorting to a discovery motion. Code of Civil Procedure section 2016.040 requires a declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” to compel. 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.4...

Excerpt: ... information and under a false representation of GOMEZ's ability to later repurchase the Property from SHARMA. 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: ...ff and KYLE BAKA subsequently granted their interests in that Property to KAREN BAKA. KAREN BAKA filed a probate petition in case FPR051416 on March 30, 2022 implicating the same deeds. The dispute between the parties concerns, among other issues, whether or not the Property is properly an asset of a trust created by Mark Duvall prior to his death. Court's Probate Jurisdiction. “Jurisdiction” refers in the truest sense to a court's authority ...

Excerpt: ...course and scope of employment with COMCAST, caused an automobile collision with Plaintiff. Plaintiff alleges that ALCANTARA was driving in a dangerous condition due to being severely tired, and that he drove in such a condition with COMCAST's approval. Plaintiff requests punitive damages against COMCAST for its acts causing and/or approving ALCANTARA's alleged dangerous driving. Legal Standard. Code of Civil Procedure section 436, subdivision (a...

Excerpt: ...ased on the same alleged defects existing or developing within one year of purchase. The Song‐Beverly Consumer Warranty Act imposes specified duties on manufacturers of consumer goods sold in California for which an express warrant is given. (Civ. Code § 1793.2(a).) A consumer good is specially defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes”. (Civ. C...

Excerpt: ....040.) The meet and confer declaration submitted by Plaintiff simply concludes that counsel “met and conferred extensively” without any supporting facts describing what actions were taken in an effort to meet and confer or the scope of discussions between counsel. (Decl. of Ramsdell, ¶ 9.) At best, Plaintiff's counsel establishes that he sent one meet and confer letter, which has not been provided to the court, and received a response to tha...

Excerpt: ...Plaintiff to produce the audio recording of her physical examination before Defendant must produce the report of that examination. Plaintiff fails to present a valid reason for withholding the recording and preventing the examiner from preparing a potentially more accurate report. Defendant shall deliver a copy of the report of the examination to Plaintiff within 30 days of service of, or access to, Plaintiff's audio recording of the examination....

Excerpt: ... of action to which the demurrer was sustained”. (Cmty. Water Coalition v. Santa Cruz County Local Agency Formation Comm'n (2011) 200 Cal.App.4th 1317, 1329.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so”. (Ibid.; Harris v. Wachovia Mortgage (2010) 185 Cal.App.4th 1018, 1023.) Additionally, Plaintiff has not cured the defects previously identified in the court's ruling o...

Excerpt: ... to an unreasonable risk of injury. (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478; Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, 481; Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 488.) Page 2 of 2 Plaintiff has been deemed to have admitted that the premises “was maintained safely at the time” of her alleged injury and that Defendant Parkview “is not liable to [Plaintiff...

Excerpt: ...rally operates prospectively to declare future rights, rather than to redress past wrongs.” (Jolley v. Chase Home Fin., LLC (2013) 213 Cal.App.4th 872, 909; Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) There is no basis for declaratory relief if only past wrongs are involved. (Osseous Tech. of Am., Inc. v. DicoveryOrtho Partners, LLC (2010) 191 Cal.App.4th 357, 366; County of San Diego v. State of Cal. (2008) 164 Cal.App.4th 580, 607‐608...

Excerpt: ...ons (the “Property”). (Evid. Code, § 452, subd. (d); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264‐265 [judicial notice of recorded documents], disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 at fn. 13.) Sufficiency of Pleading. “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) 1...

Excerpt: ...nd agreement requirements of the CITY OF BENICIA (“CITY”), by successfully obtaining an encroachment permit and entering into an encroachment agreement with CITY [UMFs 1‐18 and evidence cited in support thereof]. Defendant also failed under Benicia Municipal Code §1.10.040 to timely file an administrative challenge of either of the administrative citations issued against him [UMFs 58 and 64, and evidence cited in support thereof]. Summary ...

Excerpt: ...ity discrimination, (5) retaliation, (6) retaliation under the Family and Medical Leave Act (the “FMLA”) and California Family Rights Act (the “CFRA”), and (7) wrongful termination. Defendant alternatively and in addition moves for summary adjudication on the issue of its liability for punitive damages. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of act...

Excerpt: ...t reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. [Khoury v. Maly's of Calif., Inc. (1993) 14 CA4th 612, 616, 17 CR2d 708, 710 (citing text); A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 CA5th 677, 695, 251 CR3d 423, 439] Comment: Otherwise, judges usually make short shrift of demurrers for uncertainty. They expect counsel to clear up any ambiguities through disco...

Excerpt: ...ENTIC FAIRFIELD LLC TENTATIVE RULING A preliminary question posed by the filing of these demurrers is whether a party named as a “real party in interest”, but not a “respondent” or “defendant”, and against whom no causes of action are clearly identified, and no charging allegations of wrongdoing made specific to that party, is one who can challenge the causes of action in the pleading by way of demurrer. The term “real party in inte...

Excerpt: ...ing is so produced, the testimony of the witness concerning such matter shall be stricken.” Here, a colossal series of delays occurred. First, the deposition, which was being taken remotely via Zoom, did not start at the appointed time although defense counsel and court reporter were ready and waiting. Thirteen minutes after the deposition was to begin, Hawkins and his attorney appeared on Zoom. Hawkins was unprepared to review documents remote...

Excerpt: ...” if the filing of the petition then causes the agency to produce the responsive documents, before the petition is ruled upon by the court. Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 463‐464. In the present case, Respondent CITY OF FAIRFIELD (“CITY”) did produce some responsive documents, at various times, all after the filing of this writ petition in September 2018. The total number of pages of these later‐produced documen...

Excerpt: ... court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) Plaintiff's objections 1 through 6 to the Declaration of Kirsten White in Support of Defendant's Motion for Summary Judgment (White) are overruled. Ms. White establishes a foundation for her expertise in relevant matters. Plaintiff's objection 18 to her deposition testimony at page 41, line 23 to pa...

Excerpt: ...ies outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Page 3 of 3 It does not suffice to include within the settlement agreement a stipulation...

Excerpt: ...nd taken. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §7:292. Discovery admissions cannot be considered on a motion for judgment on the pleadings. No extrinsic evidence: The motion normally lies only for defects fully disclosed on the face of the pleading under attack or by matters of which judicial notice may be taken. Declarations or other extrinsic matters are improper. Therefore, the judge hearing the motion cannot consider ...

Excerpt: ...ar either on the face of the pleadings or upon facts of which the court may take judicial notice. C.C.P. § 438(d); see California Evidence Code § 452. In general, where an answer totally fails to deny a material allegation, the allegation is treated as a binding admission. 5 Witkin, California Procedure (6th ed. 2021) Pleading, § 1090, p. 522. The same is true if the answer contains a proper denial, but the denial is directed to an allegation ...

Excerpt: ... driven by Defendant Bartley. (Complaint, ¶¶ 3‐5, 7, 11‐13, 15; Amendment to Complaint.) Negligence may be alleged in general terms. (Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795; Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 421; Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 154.) “[A]fter what was done has been stated, it is sufficient to allege that it was negligently done, without stating the particu...

Excerpt: ...he court may take judicial notice. C.C.P. § 438(d); see California Evidence Code § 452. In his answer, Defendant denied paragraphs 5, 7, 8, 11, 12, 14 of Plaintiff's complaint based on lack of information or belief. Those are the operative paragraphs alleging the elements of common counts; an unpaid debt that a defendant owes to plaintiff. 4 Witkin, California Procedure (6th ed. 2021) Pleading, § 565, p. 654. Therefore, DEFENDANT has specifica...

Excerpt: ...the court to have been reasonably incurred by the buyer in connection with the prosecution of his action. (Civ. Code, § 1794, subd. (d).) When awarding these required fees a court must make an initial determination of the actual time expended and then ascertain whether under all the circumstances of the case the amount of actual time expended and the charge for the time are reasonable. (Hanna v. MercedesBenz USA, LLC (2019) 36 Cal.App.5th 493, 5...

Excerpt: ...ng, or it is withdrawn by the moving parties, the court may proceed later in this scheduled hearing to consider argument on the demurrer and writ. Otherwise, if the disqualification motion is granted, or taken under submission, the court will discuss the resetting for hearing of the demurrer and the writ. Page 3 of 4 As the tentative ruling on the disqualification motion: Moving parties identified Penal Code §1424(a)(1) as the basis for this dis...

Excerpt: ...e of action under section 1983. As to the state law claims, any claim against a public entity must be authorized by statute. Government Code section 815. Government Code section 844.6 immunizes public entities from suits based on injury to a prisoner. The only exception to this broad immunity relevant here is Government Code section 845.6, which makes public employees and entities liable for injuries to a prisoner in certain situations, including...

Excerpt: ...he court may take judicial notice. C.C.P. § 438(d); Evidence Code § 452. In his answer, Defendant denied paragraphs 5, 7, 8, 11, 12, 14 of Plaintiff's complaint based on lack of information or belief. Those are the operative paragraphs alleging the elements of common counts; an unpaid debt that a defendant owes to plaintiff. 4 Witkin, California Procedure (6th ed. 2021) Pleading, § 565, p. 654. Therefore, DEFENDANT has specifically denied, bas...

Excerpt: ...anted to compel further responses to the following interrogatories: Form Interrogatories 15.1; 17.1; and Special Interrogatories 47‐ 51. The response to 15.1 thus far provided by FF PROPERTIES, LP dba FAIRFIELD PROPERTIES, LP (“FF”) did not include the names and addresses of each and every witness (some of which were referred to only in general descriptive terms), nor did it identify each and every document FF asserts support any denials of...

Excerpt: ...Defendant with a detailed meet and confer letter and that opposing counsel telephonically discussed the issues raised in the letter, it is evident that counsel did not engage in a “serious effort at negotiation and informal resolution” that amounted to a sufficient “attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Townsend v. Superior Court (1998) 61 Cal....

Excerpt: ...t of Corr. and Rehab. (2006) 142 Cal.App.4th 377, 386.) To be “material”, the change in work conditions must be more than merely contrary to the employee's interests or desires, but must consist of a detrimental and substantial effect on the employee's work environment. (Ibid.; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1445.) “[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an emp...

Excerpt: ...any written document bearing the signatures of the parties or their attorneys here. Instead, she relies upon some communications between the attorneys, via telephone and e‐mail, which her counsel claims constitute a written settlement agreement. E‐mails are insufficient to meet the C.C.P. section 664.6 “signature” requirement. [A] typed name at the end of an e‐mail is not, by itself, a signature under case law. Courts have held that typ...

Excerpt: ... of her cell phone records or compel her cell phone carrier, Verizon, to release the records pursuant to a subpoena duces tecum. The motion is granted with a time limitation. This case arises from a motor vehicle accident which resulted in criminal charges against Rowley and two civil cases, now consolidated. Moving parties seek Rowley's cell phone records for a brief period of time before and after the moment of the accident. Said records cannot...

Excerpt: ...recoverable in a Song‐Beverly Consumer Warranty Act (“lemon law”) action, such as the one before the court, unless they were reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., § 1033.5, subds. (a)(3), (a)(10), (c)(5) [“necessary” deposition costs and attorney's fees, inter alia, are “costs”]; Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 [lemon law attorney's f...

Excerpt: ...t to meet and confer prior to filing of the motion. The Declaration of Yuki Cruse in Support of Motion shows that WINCO made adequate efforts to meet and confer prior to filing this motion. Merits of the Motion. Code of Civil Procedure section 2017.020, subdivision (a) allows a court to limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information s...

Excerpt: ...action of a purchase agreement that contains items for which Defendant may not be liable. (See, UMF 1‐4.) Additionally, although Plaintiff purports to direct this second summary adjudication motion against the second cause of action for violation of Civil Code section 1793.2(b), the damages for a violation of that subdivision are limited to “damages caused by the delay in repairing a nonconformity that did not substantially impair the car's u...

Excerpt: ...r or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. The motion is untimely. The Request for Entry of Default was filed August 20, 2020. The Default Judgment was entered September 11, 2020. The instant motion was filed August 31, 2021, almost one year after the ent...

Excerpt: ...nd for sanctions; and a motion for order deeming Requests for Admission served on Defendant Dwight Davenport admitted, and for sanctions. Defendant Dwight Davenport failed to file oppositions to either motion. Plaintiff's motion to compel responses to Requests For Production Set No. 1 is granted. By failing to timely serve responses to this discovery request and produce documents, Defendant Dwight Davenport has waived all objections. (Code Civ. P...

Excerpt: ...to reexamine their positions, and to narrow their disputes to the “irreducible minimum” before asking the court to resolve them. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §8:1159; See also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281, quoting Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 [“'informal resolution' of discovery disputes ‘entails something more than bickering with (opposing counsel).' Rather,...

Excerpt: ..., Williams v. State of California, under Evidence Code section 452, subdivision (d) as records of the court. Claims Act Compliance. Plaintiff cannot bring a tort case against Defendant, a public employee acting in the course and scope of her employment at the time of the underlying incident, unless Plaintiff shows she properly presented a written administrative claim for her injuries to Defendant's employing public agency (the State of California...

Excerpt: ...I HATCH‐SMITH and filed June 14, 2021. The BIANCOS' second motion is to be awarded attorneys' fees and costs incurred in their partition action against PATTI E. HATCH‐SMITH (“HATCHSMITH”). Their partition action was consolidated with related cases concerning title to the property at issue (the “Property”) and monies owed to the BIANCOS for work performed. Attorneys' Fees under Code Civ. Proc., § 874.010. Code of Civil Procedure secti...

Excerpt: ...e of Civil Procedure section 2016.040 requires a declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” to compel. The court finds Plaintiffs' counsel's declaration accompanying the motion to compel sufficient to show reasonable and good faith meet and confer efforts. (Declaration of Kevin R. Elliott at ¶¶ 8‐9, 11.) Requests for Admissions. Requests for Admissions #4‐5 r...

Excerpt: ... 119, 124, 125, 126 and 128; and denied as to interrogatories 112, 113, 116, 118, 127, 131, and 132. Plaintiffs' motion to compel further responses to Requests for Production, Set Two is granted as to requests 60, 63 and 64; and denied as to requests 54, 55 and 62. Plaintiff's counsel here identified no further meet and confer effort after Defendant filed amended responses to some of the discovery at issue in Plaintiff's motions (Special Interrog...

Excerpt: ...Communications preparatory to, or in anticipation of litigation, are protected if they concern the subject of the dispute “and [are] made in anticipation of litigation contemplated in good faith and under serious consideration”. (People ex rel. Fire Ins. Exch. v. Anapol (2012) 211 Cal.App.4th 809, 824.) Defendant presents evidence that the claim submitted to Plaintiff's surety was either “a necessary prerequisite to expected litigation or w...

Excerpt: ...r summary adjudication the court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) Moving Defendants' Objections #1‐26, 29‐43, and 45 are overruled. The parties' remaining objections are deemed immaterial to the disposition of the motion. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an elem...

Excerpt: ...laintiffs' survival causes of action against Defendant were raised but not timely brought to trial, and Defendant has not requested judicial notice of any matter establishing that the survival causes of action are not in conformity with the laws of the state, a court rule, or an order of the court. While Defendant attempts to present as an exhibit a copy of a 2005 complaint filed with the Superior Court of San Francisco by the decedent, the exhib...

Excerpt: ...ctivities of daily living and cannot Page 3 of 3 live alone. (Complaint at ¶ 18.) Plaintiff requires constant monitoring due to “severe Alzheimer's.” (Complaint at ¶ 20.) Plaintiff suffers from “dementia.” (Complaint at ¶ 22.) The complaint states that Vincent Hackett brings the action as Plaintiff's attorney in fact. Mr. Hackett, as Plaintiff's attorney in fact but not her guardian ad litem, does not have the ability to bring an actio...

Excerpt: ...ciaries of a trust have no standing to sue on claims belonging to the trust. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §§2:6.5 through 2:6.7, pp. 2‐4 and 2‐5. It is the trustee of the trust who has standing and capacity to sue, to assert claims on behalf of the trust, and its beneficiaries. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §2:6, p. 2‐3. As to each of the causes of action asserted by trustee ...

Excerpt: ... liability. Both causes of action share the same elements of duty, breach, causation and damages. Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury”]. The majority of Defendants' arguments in this motion seek to negate a necessary element shared by both the negligence and the p...

Excerpt: ... mental examination. Plaintiff placed her mental and emotional condition at issue in the Complaint and is making a claim for mental and emotional distress above and beyond that usually associated with the physical injuries claimed. (C.C.P. §2032.320.) Good cause is also shown for the examinations to take place more than 75 miles from the current residence of the plaintiff. The accident occurred in California; plaintiff treated in California; the...

Excerpt: ... liability. Both causes of action share the same elements of duty, breach, causation and damages. Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury”]. The majority of Defendants' arguments in this motion seek to negate a necessary element shared by both the negligence and the p...

Excerpt: ...tice of several recorded documents pertinent to this Homeowner's Bill of Rights action, as well as documentation from Plaintiff's Chapter 7 bankruptcy case. Plaintiff also requests judicial notice of certain documentation from her bankruptcy case. The court takes judicial notice of all proffered recorded documents as facts not reasonably subject to dispute and capable of ready and accurate determination. (Evid. Code, § 452, subd. (h); Md. Casual...

Excerpt: ...e action as a whole and the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Subdivision (d) permits a court to grant any motion for preference in its discretion if it sees clear and convincing medical documentation concluding that a plaintiff suffers from an illness raising substantial medical doubt of the plaintiff's survival beyond six months and the court believes that a...

Excerpt: ...ear limitations period. (Com. Code § 2725(1); Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297, 1306.) A cause of action for breach of an implied warranty cannot accrue any later than one year after tender of delivery of the good, the “limited prospective existence beyond the time of delivery” provided by the SongBeverly Act. (Com. Code § 2725(2); Mexia, 174 Cal.App.4th at 1308‐1309.) And, while a breach of an express warranty contemp...

Excerpt: ... Although “conspiracy” is not a separate cause of action, but a means to impose liability on a party who engaged in a common plan or helped perpetrate a tort with the immediate tortfeasors who committed the wrongful act (Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal.4th 503, 510‐511), and Cross‐ defendant Sandhu is alleged to be the actual tortfeasor who committed the wrongful act, making any allegation of conspiracy against Cr...

Excerpt: ...ed a serious latent manufacturing defect (the “Engine Defect”). 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 or her case “with reasonable precision a...

Excerpt: ...n, allow amendments to pleadings “in furtherance of justice.” (Code Civ. Proc. 473, subd. (a)(1).) The court has wide discretion here but repeatedly stated policy encourages liberality in allowing amendment. (See Frost v. Witter (1901) 132 Cal. 421, 424; Cardenas v. Ellston (1968) 259 Cal.App.2d 232; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) Construction of Labor Code Section 558.1. The court finds it is legally possible for the priva...

Excerpt: ...'s failure to properly and timely assert it. (Code Civ. Proc., § 1281.2, subd. (a).) This can happen when the proponent has unreasonably delayed in undertaking the procedure. (Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557.) The determination of waiver is a question of fact for the trial court. (Ibid.) Relevant factors to finding waiver include actions inconsistent with the right to arbitrate, whether the “litigation machinery h...

Excerpt: ...ng defendants' share of liability. All requirements having been satisfied, the motion is granted. The DUDLEYS' Motion to Contest DAN PALMER's Application for Determination of Good Faith Settlement TENTATIVE RULING ARNOLDO ATILIO GARAY (“GARAY”), Plaintiff in case FCS051729, moves for a determination of good faith settlement regarding settlement of his personal injury claims in that case against DAN PALMER TRUCKING, INC. (“DAN PALMER”) and...

Excerpt: ...oena upon a party's motion. The court may make any order as appropriate to protect the subpoenaed entity from unreasonable demands. The court finds that Plaintiffs' subpoenas to Wells Fargo and Bank of the West are only reasonably calculated to lead to the discovery of admissible evidence where they request copies and records of checks, deposits, withdrawals, and transfers from Defendants' accounts. (Obregon v. Superior Court (1998) 67 Cal.App.4t...

Excerpt: ...f the relevant information. Defendants were served with the summons and complaint on January 7, 2021. Plaintiff then served defendants, by mail to their home address, requests for admission on February 1, 2021. Defendants' attorney filed an answer on February 3, 2021 and commenced discovery. Defendants' attorney was not informed of the outstanding discovery served by plaintiff by either plaintiff's counsel or her clients and in fact, did not lear...

Excerpt: ...ranted. Full and complete verified responses without objections shall be served within 30 days of service of this order. The court notes that the proper motion is a motion for order deeming requests for admission admitted. CCP §2033.280. This was not requested by plaintiff and is not granted. Motion to Compel Responses to Form Interrogatories The motion is granted. Full and complete verified responses without objections shall be served within 30...

Excerpt: ...d fifth cause of action for negligence. A plaintiff may maintain a cause of action for equitable indemnity when there is some basis for tort liability against the defendant. (BFGC Architects Planners, Inc. v. Forcum/Mackey Constr., Inc. (2004) 119 Cal.App.4th 848, 852.) While liability under the Agricultural Labor Relations Act is limited to “employers” and excludes farm labor contractors (See, Lab. Code §§ 1140.4(c) [definition of employer...

Excerpt: ... in severe cellulitis and near amputation” arising out of a “missed [] step coming out” of a rental vehicle. (Response to UMF 3.) Plaintiff felt no pain or experienced other symptoms of injury on the date of the vehicle collision or the days immediately following the collision. (Id. at 4‐5.) It is undisputed that Plaintiff sustained his left ankle and foot injury “when he ‘misstepped' out of his rental vehicle from about three feet of...

Excerpt: ... in severe cellulitis and near amputation” arising out of a “missed [] step coming out” of a rental vehicle. (Response to UMF 3.) Plaintiff felt no pain or experienced other symptoms of injury on the date of the vehicle collision or the days immediately following the collision. (Id. at 4‐5.) It is undisputed that Plaintiff sustained his left ankle and foot injury “when he ‘misstepped' out of his rental vehicle from about three feet of...

Excerpt: ... it is not alleged in the complaint, Defendant Farmers asserts in its motion that it is merely the insurer for Defendant Khodaverdi. Plaintiff cannot bring a direct action against an insurer and may not join an insurer in an action against the insured to establish liability. (Rose v. Royal Ins. Co. (1991) 2 Cal.App.4th 709, 718; Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 514.) In any case, having failed to file any opposition to the mo...

Excerpt: ...rts have been made to meet and confer to try to informally resolve the disputes. C.C.P. §2025.450(b)(2). 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 [factors to be considered include the complexity of the discovery issues, the past history of the counsel on prior disputes, and to a certain extent, the judge's gut feel...

Excerpt: ...lure to pay overtime wages, (10) unlawful business practices, (11) quantum meruit, (12) money had and received, and (13) unjust enrichment, filed on November 13, 2020. The core of the complaint is a dispute over an agreement between the parties for SHARMA to purchase real property (the “Property”) from Plaintiff and then sell it back to him. Defendants present a number of attachments and declarations to the court in support of their demurrer....