Excerpt: ... the interpretation and scope of this Arbitration Provision and the arbitrability of the claim or dispute) which arises out of or relates to [the] condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) [to] be resolved by neutral binding arbitration". (Ibid.) Although Defendant Nissan North America, Inc. was not a signatory to this ag...

Excerpt: ... its joint agent TRI Commercial Real Estate Services lnc and other persons and entities with whom DMP has communicated with during the course of the transaction which is the subject of this action." This response does not consist of a statement that Defendant will comply with the document request, a representation that Defendant lacks the ability to comply with the document request, or an objection to the document request. (Code Civ. Proc. S 2031...

Excerpt: ...nlimited to limited jurisdiction, on motion by a defendant filed by the time that defendant must file its initial responsive pleading. C.C.P. 5403.040(b) permits later-filed motions to reclassify, but only if "The moving party shows good cause for not seeking reclassification sooner". Page 2 of 2 WALMART's motion made no showing of gtnd cause for the six to seven month delay in filing here. Even if WALMART's motion had been timely filed and timel...

Excerpt: ...omplaint alleges that GOMEZ refused to expunge a lis pendens on SHARMA's real property (the "Property") despite a July 14, 2022 court order and that GOMEZ has converted SHARMA's property. The court has received opposition to the ant-SLAPP motion but has not received opposition to the demurrer. GOMEZ's Standing. The court disregards GOMEZ's arguments as to SHARMA's first cause of action, alleging professional negligence against Defendants ALI ARI ...

Excerpt: ...ch the defendant acted on behalf of the plaintiff in a transaction, and either misled or failed to fully disclose information they should have known, which was a substantial factor in causing the plaintiff harm. CACI 4111; Civil Code 51573. Fraud (intentional misrepresentation) involves making a knowing misrepresentation with intent to induce reliance, causing justifiable reliance and harm. Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App...

Excerpt: ...eath due to Defendant's understaffing of its care facility. Meet and Confer Efforts. The court first considers the adequacy of the parties' efforts to meet and confer to work these issues out before resorting to a motion to compel further responses. 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. Plaintiffs' cou...

Excerpt: ...ployment and Housing Act (the "FEHA"). Legal Standard. "The function of a demurrer is to test the sufficiency of the complaint as a matter of law." (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case "with reasonable precision and with particularity sufficient to acquaint [t...

Excerpt: ...ear and convincing evidence that the adverse employment action would have occurred even absent the whistleblowing. Labor Code 51102.6. These same standards apply for both trial and summary judgment. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 717. Thus, to defeat a defense summary judgment or adjudication motion, a plaintiff need only present evidence sufficient to show that whistleblowing was a contributing factor to the ad...

Excerpt: ...es of motions (although the captions of the notces bear the correct date, as does Plaintiff's oppositions), and to claim that Defendant's counsel had failed to adequately meet and confer before filing the motions. Plaintiff specifically argued that the failure of Defendant's counsel to request an informal discovery hearing precluded a finding of adequate meet and confer efforts. There is no authority for this proposition, nor has Plaintiff's coun...

Excerpt: ...ey's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be c...

Excerpt: ...aintiff, now an adult, suffered childhood sexual abuse from Defendant EDWARD HEARN ("HEARN"), a DOLPHINS employee. 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: ...h); 2. That there is no meritto each of the Defendants' affirmative defense allegations in their Amended Answer to Plaintiff's Third Cause of Action in their Third Amended Complaint for Unruh violations. In support of her Motion, Plaintiff submits four declarations: from herself, her counsel, and two experts, David Atkin, M.D„ and Steve Schraibman, CASP, AIA. She does not prov-de a Separate Statement of undisputed Material Facts. b. Opposition:...

Excerpt: ...hat is subject to the jurisdiction of the court or the relief demanded in the action would exclude the party from any interest in the property. Strict compliance is required to obtain leave to serve by publication. County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450. Further, constitutional principles of due process of law require that service by publication be used only as a last resort. Watts v. Crawford (1995) 10 Cal.4th 743, ...

Excerpt: ...ictim". (Thing v. La Chusa (1989) 48 cal.3d 644, 667-658; Bird v. Saenz (2002) 28 cal.4th 910, 915.) A bystander may be aware that an injury-producing event is causing injury to the victim without visually observing the exact moment of injury. (Krouse v. Graham (1977) 19 Cal.3d 59, 76; Wilks v. Hom (1992) 2 Cal.App.4th 1254, 1271; see, Bird, 28 Cal.4th at 916 ["To be sure, Thing's requirement that the plaintiff be contemporaneously aware of the i...

Excerpt: ...ugs and/or controlled substances were in her system at the tme of October 25, 2021 motor vehicle collision." Timeliness of Motion. Code of Civil Procedure section 1987.1 gives the trial court power to quash, modify, or direct conditional compliance with a subpoena upon a party's motion. The court may make any order as appropriate to protect the subpoenaed entity from unreasonable demands. Code of Civil Procedure section 1985.3, subdivision (g) mo...

Excerpt: ...bd. (b), 2016.040.) Defendant's counsel's declaration accompanying its motion to compel states that since denial of Defendant's previous motion for leave to conduct a mental examination on February 22, 2023 the parties have met and conferred by phone and email. (Declaration of Simone M. Leighty in Support of Motion at "1 7-8, Exhibit F.) Subsequent to these discussions Defendant served a new demand for examination on March 13, 2023, to which Plai...

Excerpt: ...us and cause for its denial". (Cal. Rules of Court, rule 3.1113, subds. (a)-(b).) Additionally, on the court's own motion, the court vacates the entry of default on January 19, 2023. Plaintiff's proof of service of the summons and complaint, on a Judicial Council form that explicitly instructs the user "not [to] use this form to show service of a summons and complaint", establishes a failure to satisfy statutory requirements for service of a summ...

Excerpt: ...00 case management fee on February 7, 2023, Page 3 of 3 due upon receipt or no later than 30 days from the date of the invoice. On March 3, 2023 a reminder was sent by AAA to Defendant and the message was relayed to the person responsible for approving large expenditures; however, he was on vacation and did not respond to Defendant's general counsel until March 7 with the approval. However, the payment was not issued. On March 14, 2023, AAA sent ...

Excerpt: ...e deposition was unilaterally set, which is incorrect. In fact, Plaintiff's counsel requested dates on which Steve Circosta would be available, but Defendant's counsel failed to respond. Decl. of David Perkins, "11.) In response, Plaintiff's counsel extended an offer to meet and confer which was unsuccessful. The Court notes that the deposition notice was already for a remote deposition and Plaintiff indicated to defense counsel that the depositi...

Excerpt: ....P. 5685.040. The underlying judgment here includes an award of attorneys fees authorized by contract, so this condition is met. The attorneys fees incurred by MEOW Y. LOH and LEE H. TAY LOH ("Landlords") in defending the ex parte application and then motion to set aside the default judgment filed by defendant/judgment debtor AMARILLO COLLEGE OF HAIRDRESSING, INC., dba Milan Institute of Cosmetology ("Tenant") also appear to have been incurred in...

Excerpt: ... complaint alleges that Decedent, Plaintiff's seventeen-year-old son, was a student with disabilities and special needs at Defendant's school. Plaintiff alleges that Defendant failed to supervise Decedent, who while unsupervised suffered an episode of seizures leading to hospitalization and then death on September 25, 2021. Scope of Subpoenas. Defendant's subpoenas to UCSF seek (1) "Any and all medical documents, paper and digital records pertain...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...dant filed no responsive pleading in this action identifying an address of record. Despite the statement of the 3420 Holsclaw Road address Plaintiff used for notice of this motion in the presented settlement agreement between the parties, it is not sufficiently clear to the court that Defendant has received notice of this proceeding. Furthermore, Plaintiff's motion does not clearly explain the credits to which Defendant is entitled against the ju...

Excerpt: ... discovery issues out resorting to a motion to compel further responses. 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 (Obregon) [factors include complexity of discovery issues, history of counsel in prior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline to file motion was not sufficient...

Excerpt: ...d due to a defective golf car. Plaintiff has stated that he does not oppose this motion. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (Code Civ. Proc., S 437c, subd. A summary judgment motion is pro#rly granted where the evidence in support of the moving party would be suffcient to sustain a judgment in his favor and his opponent does not show facts s...

Excerpt: ...ver, a constitutional or statutory provision must identify a clear, nondiscretionary duty to act upon the facts alleged or an abuse of discretion in how [respondent] chose to act" and a petition must "show that there is some specific statutory mandate that was violated by the [public entity]." (In re Dohner (2022) 79 Cal.App.5th 590, 598-599, internal quotations and citations omitted.) Petitioner has not established that Respondent owed a clear, ...

Excerpt: ...intiffs' father ("Decedent") was an elder in Defendant's care and suffered injury and death due to Defendant's understaffing of its care facility. Defendant allegedly misrepresented its CMS star rating to Plaintiffs to entice them to place Decedent in its care. 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,...

Excerpt: ... discovery issues out before resorting to a motion to compel further responses. 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 (Obregon) [factors include complexity of discovery issues, history of counsel in prior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline to file motion was not suf...

Excerpt: ...r malicious, including leaving Decedent "to regularly sit in his fecal matter unattended such that he endured a bi-lateral pressure ulcer on his coccyx for years", "fail[ingl to provide Mr. Bellalda with adequate nutriton and hydration, such that he became anemic and critically dehydrated", failing to clean or bathe Decedent properly such that he developed "multiple pressure ulcers, which became gangrenous and septic", and failing to "maintain ge...

Excerpt: ... Defendant, was assaulted by train passenger Susanna Campos and her daughter Angie Campos, who was waiting for Susanna at Suisun Station. Objections to Evidence. In ruling on a motion for summary adjudication the court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc„ S 437c, subd. (q).) The court finds the first two of Defendant's three objections to Plaintiff's evidence im...

Excerpt: ...on for wrongful termination in violation of public policy is denied. "When a plaintiff alleges retaliatory [or discriminatory] employment termination either as a claim under the FEHA or as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable i...

Excerpt: ...rnia Environmental Quality Act (the "CEQA"). additionally moves to dismiss the petition on the same grounds upon which he bases his demurrer. The court takes judicial notice under Evidence Code section 452, subdivision (c) of Exhibit A, constituting the notice of exemption stating the categorical exemption of U-18-01-MR1 from the CEQA filed May 5, 2022. The petition was filed on July 26, 2022. Public Resources Code section 21157, subdivision (d) ...

Excerpt: ...cation. (NBC subsidiary (KNBC-TV), Inc. v. superior court (1999) 20 cal.4th 1178, 1208; Mercury Interactive Corporation v. Klein (2007) 158 Cal.App.4th 60, 84.) Accordingly, a court record must not be filed under seal without a court order. (Cal. Rules of Court, rule 2.551(a).) Such an order must not be based solely on the agreement of the parties. (Cal. Rules of Court, rule 2.551(a).) A party seeking the sealing of a court record must file a wri...

Excerpt: ... importance of discouraging multiple litigation designed solely to harass an adverse party", "avoiding unseemly conflicts with the courts of other jurisdictions", and "whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced." (Thomson v. Cont'l Ins. Co. (...

Excerpt: ...hoice along with the test materials and raw test data. Plaintiffs have conceded that there is good cause for the mental examinaton. (Code Civ. Proc. S 2032.320(a).) The only dispute between the parties is whether disclosure of copies of the tests administered and raw test data should be limited to an expert neuropsychologist of Plaintiffs' choice or whether disclosure may be made directly to Plaintiffs' counsel in light of Dr. Roberts' professed ...

Excerpt: ...th 417, 425- 427 [replacement judge should consider the merits of a motion for reconsideration of the disqualification motion]) and a motion asking a court to decide the same matter previously ruled on should be treated as a motion for reconsideration regardless of the label used by the party (J.W. v. Watchtower Bible & Tract Soc'y of New York, Inc. (2018) 29 cal.App.5th 1142, 1171; Powell v. county of orange (2011) 197 Cal.App.4th 1573, 1577). T...

Excerpt: ...isputed material facts demonstrated that SUTTER was entitled to judgment because Plaintiffs were unable to prove all elements of their causes of action, and that Plaintiffs failed to establish triable issues of material fact in response. MITCHELL was self-represented at the time when opposition to SUTTER's motion was due and failed to submit timely opposition. MITCHELL states that she has now retained counsel and requests reconsideration so that ...

Excerpt: ...vance of meet and confer requirements may conserve his own resources as well as those of the court. However, "[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (Code Civ. Proc„ S 430.41, subd. 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) ...

Excerpt: ...cheduled to be tried on July 31, 2023 does not raise such a risk of inconsistent rulings to warrant a need to withdraw the reference, particularly when it appears that the parties would be collaterally estopped from relitigating issues resolved by trial in one litigation in the prosecution ofthe other. (See, Code Civ. Proc. S 644(a) [decision of the referee stands as the decision of the court]; Pac. Lumber Co. v. State Water Res. Control Bd. (200...

Excerpt: ... on Void Judgment TENTATIVE RULING Preliminarily, the court rejects the arguments raised in the opposition filed by MEOW Y. LOH and LEE H. TAY LOH ("Plaintiffs") that its ruling on the earlier ex parte application collaterally estops AMARILLO COLLEGE OF HAIRDRESSING INC. dba Milan Institute of Cosmetology ("Defendant") from raising the issues raised in this motion, or renders this motion as one for reconsideration. As to collateral estoppel, neit...

Excerpt: ...ars that these conditions have existed since Plaintiff filed her initial action in case number FCS052193 on January 18, 2019, which has been pending, without apparent urgency, for over four years and which is currently scheduled to commence trial on July 31, 2023. (Decl. of Straus, 7.) Not only has Plaintiff failed to identify any recent deterioration of health that might explain the current demand for preference (no motion for preference was sub...

Excerpt: ...ocument may be accepted when made by a party or if there is no factual dispute over the contents of the document]; Fowler v. Howell (1995) 42 Cal.App.4th 1746, 1749-1750 [court may take judicial notice of the records and files of a state administrative board]; see, e.g., Tapia v. County of San Bernardino (1994) 29 Cal.App.4th 375, fn. 1 [taking judicial notice of the records of the Workers' Compensation Appeals Board].) Although Plaintiff objects...

Excerpt: ...015.040) and fails to establish that the parties engaged 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 .App.4th 1431, 1439.) Respondent's counsel's declarations do not demonstrate that the parties ever discussed the claimed insuf...

Excerpt: ...of action for fraudulent conveyance that was not based on the lease agreement. YESENIA ANGEL is not a signatory to the lease agreement containing the attorney's fees provision upon which she seeks attorney's fees in this action. Although courts have recognized that a non-signatory may recover attorney's fees under a contract in some circumstances, such circumstances do not exist in this case. A non-signatory may recover attorney's fees if she "st...

Excerpt: ...t EDWARD HEARN ("HEARN"), a teacher, while attending a DUSD school. Request for Judicial Notice ("RJN"). Matters subject to judicial notice may support a demurrer under Code of Civil Procedure section 430.30, subdivision (a). The court takes judicial notice of the docket of this case (relevantly showing that DUSD was served with Plaintiff's original complaint on October 7, 2020), DUSD's tort claim to DIXON made on August 18, 2022, DIXON's refusal...

Excerpt: ...igent infliction of emotional distress. Plaintiffs' complaint concerns UNIVERSAL's alleged acts and omissions relating to the death of their son Daimon Ferguson ("Decedent") at Defendant SUTTER VALLEY HOSPITALS, dba SUTTER SOLANO MEDICAL CENTER hospital on September 3, 2020. The court has not received opposition from FERGUSON. Page 2 of 5 Objections to Evidence. MITCHELL's objection to UNIVERSAL's Exhibit D, purportedly a security camera video sh...

Excerpt: ...e ("IDC") will be conducted to better assess what documents within the 19 categories of requests are reasonably likely to produce evidence that is relevant to Plaintiff's whistleblower retaliatory discharge claim. Ultimately, only those documents will considered for The IDC is also most importantly an opportunity for the parties to meet and confer, and have meaningful input into this process, before the court conducts its in camera review of the ...

Excerpt: ...oritize broader requests so that the agency could focus its efforts on more immediate production of specific parts of the request, the parts of most interest to the requester. For example, in National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937 (reversed on other grounds by National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488), the appellate court noted that at the invitation of the city, the requestor agreed to a tempora...

Excerpt: ...(1941) 44 Cal.App.2d 71, 73.) Plaintiff lists various potential causes of action in the caption before simply listing alleged facts without making any attempt to separately state the causes of action sought to be pursued. From the facts alleged in the body of the complaint, it appears that Plaintiff attempted to state causes of action on the legal theories that Plaintiff's employment was wrongfully terminated either in direct violation of the Fam...