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....

Excerpt: ...tion. (Code Civ. Proc., § 437c, subd. (o)(1).) A summary judgment motion is properly granted where the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not show facts sufficient to present a triable issue of fact. (Parker v. Twentieth Century‐Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion is not to be granted where any triable issue of material fact exists. (Ibi...