Excerpt: ......

Excerpt: ...ode of Civil Procedure. Following the arbitrator's decision, any party may petition the court t o co nfirm or vacate the arbitration award under section 1285 of the Code of Civil Procedure. If the arbitrator determines that Adolph is an aggrieved e m p lo ye e in t h e p r o c e s s o f a d ju d ic a t in g h is in d iv id u a l P AGA c la im , t h a t d e t e r m in a t io n , if c o n f ir m e d a n d r e d u c e d to a final judgment (Code...

Excerpt: ...lerio is SUSTAIN ED in f u ll. Defendant argues that the intent and knowledge of the parties is such that it can be judicially noticed. He argues “Defendant understands that evidence is not, strictly speaking, admissible of purposes of ruling on demurrer.” This is a correct statement ev en without the “strictly speaking,” clause . Judicial notice may not be taken of any matter unless authorized or required by la w . (Ev id . C o d e , § ...

Excerpt: ...INUED, on the Court's own motion . (a ) There is no dispute between the parties as to Defendant's entitlement to the re que st e d discove ry. In the absence of demonstrated justification for said presence, the Court finds that Plaintiff's Counsel is not entitled to be present for said Independent Medical Examination. ( Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Ca l.Ap p .4 t h 7 3 9 ; Vin s o n v. Su p e r io r Co u r t (...

Excerpt: ... the amount of $1,060.00 against Defendant and Defendant's Counsel – GRANTED, and unopposed; c) P la in t if f 's M o t io n t o Compel Further Responses to Demand for Production, Set One from Defendant, Mid Valley Agricultural Services, Inc; Request for Sanctions in the amount of $1,060.00 against Defendant and Defendant's Counsel – GRAN TED , a n d unopposed; d) Plaintiff's Motion to Compel Further Responses to Request for Admissions, Set O...

Excerpt: ...evidence conclusively disproves each element necessary to support Plaintiffs' recovery for wrongful death and survival premised upon professional negligence - breach of duty, causation, and resultant damages, and also conclusiv ely disproves the elements of causation and resultant damages that are necessary to support Plaintiffs' recovery for either wrongful death or survival premised upon professional negligence . Further, Defendants' evidence e...

Excerpt: ... Fund Insurance Co m p a n y (2022) 81 Cal.App.5th 96, 104- 105.) The Court therefore assumes the allegations are factual for the purposes of this motion. Here, Plaintiffs allege that the employees were negligently hired in the second cause of action, and negligently supervised and trained in the third cause of action. Plaintiffs' argument is that the failure – acknowledged by Defendants – to a v o id t h e w it h d rawal of money by unauthor...

Excerpt: .... Dept . of Fin., (2022) 79 Cal. App. 5th 431,), as modified on denial of reh'g (May 31, 2022), review denied (Aug. 10, 2022) . The Court also finds that said alleged agreement, were same enforceable, is violative of the Statute of Frauds in that it relates to “An agreement for the le asing for a longe r pe riod than one ye ar, or for t he sale of re al prope rt y, or of an interest therei n.” but was not in writing. (Civ. Code § 1624; M...

Excerpt: ...ify whether the Plaintiff viewed the English - o r Sp a n is h -language version of the arbitration agreement. It appears from the record that it was the Spanish version, though that is u n c le a r . If Defendant does not know which version it is, the use of the English version is a d d it io n a l e v id e n c e t h a t P la in t if f d id n o t p e r s o n a lly a g r e e t o a r b it r a t io n . If it is t h e Spanish version, such version s...

Excerpt: ...tes the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons —that is, it relates to third party claims, not attorney fees incurred in a breach of contract action between the parties to the indemnity agreement itself. ( Alk i Pa rt ners, LP v. DB Fund Servs ., LLC, (2016) 4 Cal. App. 5th 574 ; Ca rr Bus. Ent erprises, Inc. v. Cit y of Chowchilla , (2008)166 Cal. App. 4th 14) . The Court fu...

Excerpt: ... 2017.010 and 2030.300 ; W illia m s v. Su p .Ct . (Ma r s h a lls o f CA, LLC) 3 Cal.5th 531, 541 Em e r s o n Ele c . Co . v. Su p .Ct . (Gra ys o n ) (1997) 16 Cal. 4th 1101; Obregon v. Sup.Ct. (Cimm's, In c . ) (1998) 67 Cal.4th 424, 434) . Regarding Defendant's claims of attorney client privilege and attorney work product the Court finds that Defendant did not provide sufficient factual in f o r m a t io n t o p e r m it a n e v a lu a t...

Excerpt: ...f demonstrating that Plaintiff does not possess the evidence to conclusively establish that said asphalt grindings were spilled by an employee/ contractor working on the Teichert / Caltrans Highway 99 jobsite on the date of Plaintiff's accident. (Code of Civil Procedure § 473c; Ag u ila r v . At la n t ic Ric h fie ld Co . , 25 Cal.4th at 850). (Defendants/ Cross Defendant's UMFs Nos. 20 - 23). However, the Court also finds that the available ev...

Excerpt: ...ld file a Second Amended Complaint but did not prior to the demurrer hearing. The Court granted additional time to do so and set timelines for filing and set a demurr er hearing date . On April 3, 2024, the Court expressed puzzlement that no opposition to the demurrer to the Second Amended Complaint was filed. Plaintiffs' counsel said she believed she could submit on her original opposition. Defense counsel and the Court thought the dire ctions w...

Excerpt: ...ty and to each cause of action on the ground that each fails to state sufficient facts to constitute a cause of action against it. For the reasons set forth below, the special demurrer and general demurrer are SUSTAINED, in full, with 30 days' leave to amend . Uncert a int y This is one of the rare cases where sustaining a special demurrer on the grounds of uncertainty is warranted. Defendant GBS was added to the pleading in place of Doe 1. No ot...

Excerpt: ... timekeepers, the nature of the work performed, the customary billing rate for each timekeeper, and the prevailing rate for comparable legal services in the co mmunity. ( Serrano v Unruh (Serrano IV) (1982) 32 Cal.3d 621, 643; Serra no v Priest (Serra no III) (1977) 20 Cal.3d 25, 48.) The Court itself has e xp e r ie n c e f r o m h is y e a r s in t h is c iv il la w a s s ig n m e n t r e v ie w in g a n d d e t e r m in in g attorney fee motio...

Excerpt: ...r granting preliminary approva l. Having considered the unopposed motion herein and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable, and adequate, and satisfies the standards for final approval under Californ ia la w . (Civ il Co d e § 1 7 8 1 ; Co d e Civ . Proc. § 382; Cal. R. Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed set...

Excerpt: ... of Anaheim ,(1994) 25 Cal. App. 4th 11, 35,); Da rr v. Lone St a r Industries , Inc., (1979) 94 Cal. App. 3d 895, 900,) . The Court also finds that the conveyance of the dominant tenement transfers all appurtenant easements to the grantee, even though the easements are not s p e c if ic a lly m e n t io n e d in t h e d e e d . ( Moyla n v. Dyke s , (1986)181 Cal. App. 3d 561, 568). Furthermore, an appurtenant easement is a part of, and cannot b...

Excerpt: ...he substance of the fee request, the Court notes that Plaintiff primarily contests the reasonableness of the hours claimed by Defendant herein. The successful party is normally entitled to a fully compensatory fee, which may be reduced only where special circumstances render the same unjust. ( Se rra no v. Unruh (1982) 32 Cal.3d 621, 639. ) Regarding the lodestar fees calculation, the Court finds, on the basis of the declarations submitted by Mr....

Excerpt: ...s, based on “what was, or should have been, known t o settlor at time questioned settlement was mad e ”, that the settlement entered by the parties was within the reasonable range of Ms. Gregg's proportional share of c o m p a r a t iv e lia b ilit y f o r p la in t if f ' s in ju r ie s b a s e d o n t h e in f o r m a t io n a v a ila b le a t the time of settlement. This finding is regardless of wheth er the settlement date was in Nove...

Excerpt: ...e h ic le warranty. ( Jensen v. BMW of Nort h America , Inc. (1995) 35 Cal.App.4th 112; Ro d r i g u e z v . F C A U S , LLC (2022) 77 Cal. App. 5th 209.) In this regard, the Court notes that the California Supreme Court granted review of Ro d r ig u e z , supra, in July 2022, explicitly allowing the opinion to continue to be cited both for persuasive value and for the limited purpose of establishing the existence of a conflict in authority which...

Excerpt: ...Cra ne v. R. R. Cra n e In v. Co rp ., (2022) 82 Cal. App. 5th 748, 298 citing Tr a h a n v. Tr a h a n , (2002) 99 Cal. App. 4th 62, 75; Go v. P a c ific He a lt h Se r vic e s , In c . (2009) 179 Cal.4th 522, 529 -532; Cot t on v. Expo Power Syst ems, Inc. (2009) 170 Cal.4th 1371, 1381- 1382) . The Court notes that the statutory buy -out procedure to avoid involuntary d is s o lu t io n o f a c o r p o r a t io n w h ic h in v o lve s t h e a p...

Excerpt: ... , § 1 2 8 1 ) . The Court finds that Plaintiff was not compelled to sign the arbitration agreement as a condition of employment and also had the option to opt out of said agreement. Therefore, the Court finds that said arbitration agreement was not a contract of adhesion. Civil Code section 1670.5; Armendariz v. Foundation Health Psychca re Services, Inc. (2000) 24 Cal.4th 83, 102 ; Pardee Construction Co. v. Superior Court (2002) 100 Cal.App.4...

Excerpt: ...d facts asserting the following : Defendant was issued a credit card account. (UF 1, 3.) Defendant agreed to be bound by the terms and conditions set forth in the Cardmember Agreement. (UF 2.) Aft e r re ce iving the cre dit card, t he account was charge d for various goods, se rvice s, or cash adv ances. (UF 3.) Plaintiff complied with its obligations under the Agreement by paying vendors for all charges that were made on Defendant's account. ( ...

Excerpt: ...r o p e r . Th e c la s s is s u f f ic ie n t ly n u m e r o u s , c o n s is t in g o f o ve r 2 ,6 0 0 in d iv id u a ls , a n d it is a s c e r t a in a b le b y r e f e r e n c e t o Defendant's personnel and payroll records. Also, Plaintiffs are adequate class representativ es, as their claims do not conflict with and are not antagonistic to the claims of other class members. Plaintiffs' claims are also typical and arise from the same emplo...

Excerpt: ...unt of time investment by Counsel. ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133). The Court therefore awards Plaintiff attorney's fees of $84, 535.00 and costs of $3,336.27 . The Court also finds that regardless of Defendants' opposition to said partition, it m a y b e c o n s id e r e d a s b e n e f it in g f r o m s a id p a r t it io n . ( St ut z v. Da vis (1981), 122 Ca l.Ap p .3 d 1 ; O r i e n v . Lu t z (2017) 16 Cal.App. 5 th 957; Ri...

Excerpt: ... s h o w in g t h a t a t r ia b le is s u e o f m a t e r ia l fact exists. [ Aguilar v. Atlantic Richfield Co. , supra , 25 Cal.4th at 850; see also La w Office s of Dixon R. Howe ll v. Va lle y (2005) 129 Cal.App.4th 1076, 1092. This case comes down to one simple question: Does Plaintiff have standing to bring this wrongful death claim and the associated negligence claim? In this case, Plaintiff and the decedent in a fatal vehicle collision in...

Excerpt: ...arious wage and hour claims, including meal and rest period violations, minimum and overtime wage violations, wage -statement violations, failure to timely pay wages during employment and at t e r m in a t io n , f a ilure to maintain accurate wage statements, failure to reimburse business expenses, failure to disclose material terms at the time of hire, a UCL claim and a claim for PAGA penalties. The subject class consists of current and forme r...

Excerpt: ...ccessful party is normally entitled to a fully compensatory fee, which may be reduced only where special circumstances render the same unjust. ( Serra no v. Unruh (1982) 32 Cal.3d 621, 639. ) Regarding the lodestar fees calculation, the Court finds, on the basis of Ms. Spiezia's declaration, that the hours claimed herein were reasonably incurred and substantially contributed to the ultimate successful result on the subject contract c la im s . ( ...

Excerpt: ...m . The original complaint contained allegations that there were written agreements via email. The new complaint describes the agreement as oral with supporting emails, which are not attached. Counsel is bound by the prior allegation that this is a w r it t e n a g r eement. ( Deveny v. Entropin, Inc . (2006) 139 Cal.App. 4 th 408.) Thus, the terms of the written agreement must be included in the complaint . There is no pleading of what the actua...

Excerpt: ...n d CO N TIN U ED in p a r t a s follows. a) P la in t if f 's m o t io n is GRANTED in part, DENIED in part and CONTINUED in part as follows. Th e Co u r t D EN IES Plaintiff's request for terminating sanctions at t h is t im e . However, the Court hereby O RD ERS Defendant to comply with its November 22, 2023, order compelling responses to the Plaintiff's Requests for Ad m is s io n o n o r b e f o r e Ap r il 1 6 , 2 0 2 4 , o r f a c e t e r ...

Excerpt: ...nt to be the prevailing party under the attorneys' fees provisions contained in the subject contracts. (Civ. Code § 1717.) Since the instant lawsuit involves adjudication of claims based on multiple, independent contracts, Civ. Code § 1717 requires the determination of a prevailing party as to each contract, without reference to which party prevails in the lawsuit as a whole. (See, e.g. Arntz v. St. Paul Fire & Marine Insurance Co. (1996) 47 Ca...

Excerpt: ... . (a ) The Court finds that Plaintiff entirely failed to respond to the subject discovery a n d a ll o b je c t io n s a r e w a iv e d . (Code Civ. Proc. § 2030.290(a).) Therefore, Defendant is entitled to an order compelling Plaintiff to provide verified responses, without ob jection, within 14 days. (Code Civ. Proc. § 2030.290(b). ) The Court further finds that Defendant is entitled to an award of monetary sanctions in connection with this ...

Excerpt: ...leged statutory and civil penalties concern various wage and hour claims, including meal and rest period violations, minimum and overtime wage violations, wage -statement violations, failure to timely pay wages during employment and at t e r m in a t io n , f a ilure to maintain accurate wage statements, failure to reimburse business expenses, failure to disclose material terms at the time of hire, a UCL claim and a claim for PAGA penalties. The ...

Excerpt: ...s t a g e , d is p o s it ive . P la in t if f 's complaint engages in what some courts call “shotgun pleading,” in which the specific actions of each defendant are poorly defined. Determining the potential lia b ilit y o f M EB Loan Trust VI and Specialized Loan Servicing requires some additional detail to assist the parties and the Court. The failure to outline which Defendants are liable under which theories is untenable . Whether lack of ...

Excerpt: ...hen shifts t o Cross-Complainant to demonstrate the probability that she will prevail on the merits of the subject cause of action as it relates to the protected activity. The Court finds that the application of the litigation privilege prevents Cross- Complainant from relying on the filing of the instant action as the basis for her breach of contract claim; therefore, she is unable to meet her burden on the instant motion. As a result, the Court...

Excerpt: ...ed in the opposition, the motion is DENIED . First, there is no separate statement as required by rule 3.1345(a)(2) of the California Rules of Court. The failure to file a separate statement is in and of itself sufficient grounds to deny the motion. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 n.14; cf. Mills v. U.S. Ba nk (2008) 166 Cal.App.4th 871, 893. ) Second, the supporting decla...

Excerpt: ...s. The Court therefore GRANTS the preliminary injunction on t h e f o llo w in g c o n d it io n s : 1. P la in t if f is o n n o t ic e t h a t it s o n ly p r iv ile g e is f o r in g r e s s a n d e g r e s s o n t o it s own lands. The Court clarifies that this means Plaintiff's members may NOT cross Defendants' land in order to access current BLM lands. Plaintiff is charged with ensuring its members understand that whatever hunting and o t h...

Excerpt: ...int are subject to the 2 -ye ar lim it a t io n s p e r io d s e t f o r t h in Co d e Civ . P r o c . § 3 3 5 .1 . As the action was filed outside that period, it is time -barre d. Plaintiff contends that she has adequately pleaded late discovery because she did not know how she had been injured until the BBS reports and findings issued in November 2022 . “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a]...

Excerpt: ...eiro and Darlene Marie Ribeiro, located at 3951 Davis Avenue in Modesto, County of Stanislaus, by eminent domain for the construction of its planned State Route 108/ North County Corridor Phase 1 Project for the public benefit and for all uses necessary, incidental, and convenient thereto pursuant to Code of Civil Procedure section 1255.410 . The Court further finds Plaintiff has, based on an appraisal, deposited the sum of $87,700.00 into the St...

Excerpt: ...o have a contractual duty to defend M id -Cal Constructors Inc., from and against all claims by Super Store Industries arising out of or in connection with Commercial Specialty Inc.'s work on the property located at 2600 Spengler Way, Turlock Ca lif o r n ia , except “to the extent the claims arise out of, pertain to, or relate to the active negligence or willful misconduct of that general contractor, construction manager, or other subcontracto...

Excerpt: ...satisfaction of the Court, the class is certified for settlement purposes only in accordance with Cal. Rules of Ct., rule 3.769(c). Th e class counsel, class representative, and claims administrator are hereby p r e lim in a r ily a p p r oved and appointed as set forth in the motion. The Court sets the following deadlines relative to this matter: 3-26 - 24 Defendant shall provide Class List and Data Report to Administrator 4-5-24 Administrator s...

Excerpt: ... litigation privilege of Civil Code §47 and §425.16 . (Brown v. Dep't of Corr ., (2005) 132 Cal. App. 4th 520; Briggs v. Ede n Council for Hope & Opportunity (1991) 19 Cal 4 th 1106 115. The Court further finds that Plaintiffs have not demonstrated the probability that they will prevail on the merits of their alleged causes of action. The Court finds that Plaintiffs have failed to meet their burden particularly as there is no evidence that ...

Excerpt: ...a).) Therefore, Defendant is entitled to an order compelling Plaintiff to provide answers, without obj ection, to the subject discovery within 30 days. (Co d e Civ. Proc. § 2030.290(b). ) The Court further finds that Defendant is entitled to an award of monetary sanctions in connection with this motion. (Code Civ. Proc. § 2030.290(c), 2023.010(d), 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Therefore, monetary sanctions in the amount o f $...

Excerpt: ...k that requires a contractor's license pursuant to Bu s . & P ro f. Co d e § 7 0 2 6 . Th e re fo re, Plaintiff, as an unlicensed contractor, is precluded from seeking recovery in law or equity for compensation under the alleged agreement. (Bus & Prof. Code § 7031(a).) Further, as it appears Plaintiff is unable to demonstrate the required licensure, the Court finds that leave to amend would be futile under the circumstances and is, therefore, d...

Excerpt: ...d - CONTINUED, to 5/ 3/ 24 at 8:30 am in Department 22; c) Plaintiff's Motion to Quash Deposition Subpoena Seeking Plaintiff's Employment Records from Smithfield Packaged Meats and for Monetary Sanctions again Defendant and/ or it's Attorneys of Record – CONTINUED, to 5/ 3/ 24 at 8:30 am in Department 2 2 a-c) The motions are procedurally defective. A separate statement is required for a motion “”[t]o compel or to quash the production of do...

Excerpt: ...rgument that this Court is divested of jurisdiction for a contempt proceeding. Petitioner's citation to Albrecht v. Superior Court (1982) 132 Cal.App.3d 612 appears reasonable, and Defendant's citations do not appear to be directly on point. It does not appear to the Court that the rules of Code Civ. Proc. § 664.6 – which do require the Court to retain jurisdiction – apply in this matter. The Court notes that any express retention of jurisdi...

Excerpt: ... The Court understands the circumstances surrounding the filings, but cannot view the failure to timely file the separate statement as the sort of error the Court has the jurisdiction to overlook, as Plaintiff suggests. The separate statement is a necessary part of the motion (Rule of Court 3.1345. ) P la in t if f c it e s Mills v. U.S. Ba n k (2008) 166 Cal.App. 4 th 871, 893 for the proposition that a separate statement does not require that t...

Excerpt: ...ll Co. v. Cit y of Ana he im ,(1994) 25 Cal. App. 4th 11, 35,); Da rr v. Lone St a r Indust ries , Inc., (1979) 94 Cal. App. 3d 895, 900) . The Court also finds that the conveyance of the dominant tenement transfers all appurtenant easements to the grantee, even though the easements are not s p e c if ic a lly m e n t io n e d in t h e d e e d . ( Moyla n v. Dyke s , (1986)181 Cal. App. 3d 561, 568) . Furthermore, an appurtenant easement is a par...

Excerpt: ...claration: 9. SUSTAINED as to relevance. Objections to Klapper declaration: 10. SU STAIN ED . 11. O VERRU LED . Defendant's motion fails due to an insufficient separate statement. A moving party on summary judgment bears the initial burden of product ion to make a p r im a fa c ie showing that there are no triable issues of material fact. [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826]. If the moving party carries this burden, it causes...

Excerpt: ...t in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. ” Plaintiff cites no authority for his assertion that liability under Labor Code § 558.1 is the equivalent of alter -ego liability and that the venue rules for alter ego therefore apply. Without such authority, the Court declines to extend alter -e go venue rul es to possible liability under Labor Code ...