Excerpt: ...ce as the court did in Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752‐1753. The court thus takes judicial notice of the certification of Alexandra Gottlieb indicating that no government claim filed by plaintiff regarding the alleged incident is contained in the records of the Government Claims Program. The court also takes judicial notice of the complaints plaintiff filed in his property action, which include the government claim plaintiff f...

Excerpt: ...ny, Plaintiff did not admit that the baling string did not break nor did he admit that he had no evidence regarding Defendants' actual or constructive notice regarding the alleged defect in the string. Plaintiff explicitly testified that his hay hook was “definitely on the string” because he had “tension” while he pulled for “[p]robably half a minute” and the only way he could have fallen the way he did is if the string broke. (Depo. ...

Excerpt: ... 29 Cal.App.5th 1241 and other cases cited by U.S. Fire, which involved the actual insurer of the defaulting defendant. The motion is denied without prejudice to a subsequent motion to set aside should U.S. Fire determine that it did, in fact, issue an insurance policy to Associated Insulation during the period of plaintiff's alleged asbestos exposure. The court notes that while U.S. Fire may not bring this motion to set aside without evidence th...

Excerpt: ... motion had already been filed. (Decl. of Rivero, Exh. 15.) In addition, the discovery sought will not be relevant to any outstanding disputed issue between the parties in light of Defendant's offer to file the proposed amended answer fully admitting liability for civil penalties awardable under the Page 3 of 3 Song‐Beverly Consumer Warranty Act. (Civ. Code § 1794.) Defendant sought a stipulation to permit Defendant to file a proposed amended ...

Excerpt: ...for summary adjudication of the second cause of action for medical professional negligence and sixth cause of action for wrongful death based on the same alleged negligent treatment is denied. Plaintiffs have established that there exists a triable issue of fact concerning whether Defendant's treatment of Decedent fell below the applicable standard of care by presenting the declaration of an expert contradicting Defendant's expert. (See, Decl. of...

Excerpt: ...action. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.) An enactment does not create a mandatory duty if it merely recites legislative goals or policies that must be implemented through a public agency's exercise of discretion. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 639; Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 980.) Plaintiff alleges three enactments impose a mandatory duty breached by the...

Excerpt: ... the Solano County Sheriff's Office and the subpoena to Humane Animal Services. The court grants the motion to quash these two subpoenas. FIELDING did not provide an affidavit for the subpoenas, as required by CCP Section 1985(b). Nor did she provide the information that would have been contained in such an affidavit in her opposition. She did not show good cause for production of the records, specify the exact matters or things to be produced, s...

Excerpt: ...§ 437c(p)(2).) Defendants improperly relied on their own responses to Plaintiff's form interrogatories and requests for admissions in attempting to show that they did not have any actual knowledge of the existence of dogs on the leased property. (Code Civ. Proc. §§ 2030.410, 2033.410; Great Am. Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450; Victaulic Co. v. Am. Home Assurance Co. (2018) 20 Cal.App.5th 948, 973; Gonsalves v...

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: ...clude a separate or separately identified notice of motion or memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112, subds. (a), (c).) Nothing in the “motion” contains “a concise statement of the law” or a “discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) The absence of a proper memorandum of points and authorities can be construed by ...

Excerpt: ...e any facts or legal theories on which Defendant's liability might be based. Plaintiff has not met his or her burden of showing that it is reasonably possible to cure the complaint by amendment. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040‐1041.) Plaintiff has not demonstrated in what manner he or she can amend the complaint or how those amendments will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 3...

Excerpt: ...oreclosure to be wrongful. The nonjudicial foreclosure statutes do not require a foreclosing party to be a have a beneficial interest in the note, to have possession of the note, to provide the power of attorney to the borrower, or to have certain allonges and endorsements for the note. The allegations that the MERS representative did not have authority to sign the Assignment of the Deed of Trust are also not sufficient. In failing to state a cau...

Excerpt: ...solidated complaint is granted in part and denied in part. Defendants' motion is granted as to Plaintiffs' allegations of sick leave notice requirements. PAGA specifically prohibits an action “for any violation of a posting, notice, agency reporting, or filing requirement of this code, except where the filing or reporting requirement involves mandatory payroll or workplace injury reporting.” (Lab. Code § 2699(g)(2); Titus v. McLane Foodservi...

Excerpt: ...tained from Defendant Acceptance was adequate to cover Plaintiff's losses. Plaintiff's cause of action for negligence is based on the theory that Defendant Sharma “failed to procure insurance coverage with sufficient limits to cover the value of Plaintiff's investment” as requested by Plaintiff. Neither theory of liability supports a determination that a need to sue or defend against Defendant Acceptance resulted from Defendant Sharma's torti...

Excerpt: .... (Complaint, ¶ BC‐2.) But, a public employee “is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional” (Gov. Code § 822.2) and a public entity “is not liable for an injury resulting from an act or omission of an employee … where the employee is immune from liability” (Gov. Code § 815.2(b)). Plaintiff has not met his burden of showing that it is reasonably possi...

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: ...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: ...urt time and resources). As to Request No. 1, counsel are to meet and confer regarding production of additional agendas and meeting minutes that refer to those topics set out on p. 4‐ 5 of plaintiffs' memorandum of points and authorities from October, 2014, to the present. As to Request Nos. 3, 4, 5, 6, 11, and 12, defendant may respond using the term “removal from the competitive team” in place of the term “termination” used in each of...

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: ...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: ... 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: ...iability might be based. Page 6 of 6 Plaintiff has not met his burden of showing that it is reasonably possible to cure his complaint by amendment. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040‐1041.) Plaintiff has not demonstrated in what manner he can amend the complaint or how those amendments will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Cooper v. Equity Gen. Ins. (1990) 219 Cal.App...

Excerpt: ...fault in violation of Civil Code section 2923.5 (FAC, ¶¶ 24, 26‐28, 40, 42), Plaintiffs admit that Defendants accepted, considered, and approved three applications for loan modification and Plaintiffs had numerous telephone conversations with Defendants' agents regarding the applications. (FAC, ¶¶ 15, 17‐20, 22‐23, 29, 31‐32.) There is no material violation of Civil Code section 2923.5 when a borrower has “multiple telephone convers...

Excerpt: ...cording”, was a brief exchange she had with Defendant in the hallway of the company legal department, while Defendant was in route to a meeting in the office of another company attorney, in which she handed him something and said “[unintelligible] this from Ed. He wanted to make sure you got this”. The other, VOICE025.WAV (the “Meeting Recording”), involved a meeting with other corporate officers, in which substantive legal matters such...

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: ...which were set out in Rappleyea v. Campbell (1994) 8 Cal.4th 975. First, ARROWPOINT has established that it has a meritorious defense in that if STANDARD is defended, the $832,750.00 judgment, which includes $750,000.00 in general damages, will most likely be reduced. Second, ARROWPOINT has established a satisfactory excuse for not defending the action in that it never had notice of the action until April, 2018. Third, ARROWPOINT has established ...

Excerpt: .... Grosvenor Airport Assocs. (2005) 2005 Cal.App.Unpub.LEXIS 2239. While this court is not bound by those unpublished decisions, it does find in the absence of any binding authority that the absence of a MC‐011 worksheet is not a proper basis for striking all costs. Nevertheless, when costs claimed in a Judicial Council Optional Form MC‐010 summary are challenged by motion, and a worksheet is then provided with the opposition, the moving party...

Excerpt: ...distress or acted with reckless disregard in causing plaintiff emotional distress. Finally, the complaint does not allege facts indicating that plaintiff experienced severe emotional distress as a result of the cutting of the tree. (See CACI 1600, 1602, 1603, and 1604). Plaintiff offers no new facts that could be alleged that would cure the defects in the complaint with respect to this cause of action. Therefore, the demurrer is sustained without...

Excerpt: ...t was brought. The complaint is uncertain, and fails to state facts sufficient to constitute any of the causes of action alleged. The court also grants the motion to strike on all of the grounds upon which it was brought. The references in the complaint to causes of action that are not alleged are improper, and the complaint does not state facts sufficient to constitute a claim for punitive damages. Had plaintiff not already filed an amended comp...

Excerpt: ...tion with other causes of action is generally prohibited. (Mobil Oil Corp. v. Superior Court (1978) 79 Cal.App.3d 486, 493; Childs v. Eltinge (1973) 29 Cal.App.3d 843, 853.) Plaintiff has not demonstrated that an exception should be made in her case. (See, Knowles v. Robinson (1963) 60 Cal.2d 620, 625‐626 [exceptions to the rule are primarily grounded on some circumstance removing the need of timely possession of the premises, such as voluntary...

Excerpt: ...ting.” (Duran v. U.S. Bank (2014) 59 Cal.4th 1, 29; Payton v. CSI Elec. Contractors, Inc. (2018) 27 Cal.App.5th 832, 842; Cruz v. Sun World Int'l, LLC (2015) 243 Cal.App.4th 367, 384; Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 989.) Even when there is a uniform policy, certification may be denied if the evidence shows that the manner in which the policy was implemented as to each individual employee varied depending on multiple ...

Excerpt: ...ng stricken if an objection to it is raised. Page 2 of 6 C.C.P. §437c(d) states: Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at th...

Excerpt: ...ed Defendant's agent, Anna Chavez, that Defendant's policy of limiting staff contact was causing Decedent “physical and mental suffering”, but Defendant nonetheless took no action to avoid the harm. (FAC, ¶ 21.) This allegation establishes not just the absence of care, but an affirmative disregard of the known risk of harm caused by conduct. (Doe v. U.S. Youth Soccer Ass'n, Inc. (2017) 8 Cal.App.5th 1118, 1140.) It also sufficiently describe...

Excerpt: ...1) 192 Cal.App.4th 1149, 1155; see, Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“We do not hold or suggest that a borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party's right to proceed”].) Plaintiff's second cause of action to quiet title and fourth cause of action for violation of the Unfair Competition Law against Defendant Wells Fargo are barred by the a...

Excerpt: ...ntment of a referee is also denied. The court does not find a basis for the appointment of a referee under CCP Section 639. The court notes, however, that the conduct of both plaintiff's counsel and defense counsel has been somewhat unreasonable and unprofessional in this matter. As to plaintiff's counsel, she did assert a number of meritless objections. Irrelevancy is not a proper objection in discovery. Defense counsel is entitled to seek all c...

Excerpt: ... motion itself or a memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112(a).) The failure to include a memorandum is deemed by this Court as an admission that the motion is not meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) The motion does not state what allegations are sought to be deleted or added. (Cal. Rules of Court, rule 3.1324, subds. (a)(2)‐ (a)(3).) The motion is not accompanied by a sep...

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: ...by filing a UCC financing statement claiming a security interest in Plaintiff GMP Process Piping. But, as already explained in Page 2 of 3 this Court's ruling on Defendants' demurrer to Plaintiffs' prior cause of action for breach of the implied covenant of good faith and fair dealing based on the same two claims, the parties' agreement contained no provision regarding the need for or referral regarding any accountants and specifically granted De...

Excerpt: ...ed to stop at the accident scene and provide his contact information. This allegation, without more, is not sufficient to indicate malice or conscious disregard on the part of defendant. As the courts indicated in Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82, although alleged intoxicated driving may give rise to a punitive damages claim, such an allegation, without any alleged facts regarding ...

Excerpt: ... the implied warranty of merchantability. The core test of merchantability is fitness for the ordinary purpose for which such goods are used, and the warranty may be breached if a vehicle is not in a safe condition. (Brand v. Hyundai Motor Am. (2014) 226 Cal.App.4th 1538, 1546‐1547; Isip v. Mercedes‐Benz USA, LLC (2007) 155 Cal.App.4th 19, 26‐27.) Plaintiff has adequately alleged facts from which it can be concluded that the vehicle was not...

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...