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....