Excerpt: ...deposition questioning of Defendant, at a minimum, with regard to the paystub documentation and video footage information that was produced/disclosed subsequent to the initial deposition proceeding. However, the Court finds that there are preliminary issues with regard to Defendant's initial responses to certain production requests (and subsequent refusal to identify or produce any such documents) that require resolution in order to determine whe...

Excerpt: ...much smaller incursion toward the rear of the property. The location and degree of incursion are represented on a map prepared by Plaintiff. Defendants engage in some regular use of the subject property. The Court, in order to impose summary judgment on the Quiet Title action, would have to rule on the easement issues which are likely to involve literal line-drawing. For the reasons outlined below, there remain contestable issues of fact on both ...

Excerpt: ...minent domain action after a project is started or even completed, and the City even cites to the applicable statutes by which a court order for prejudgment possession is obtained in such proceedings, the City of Modesto failed to avail itself of such timely proceedings. The City of Modesto opted to purchase the property interests at issue rather than commence eminent domain proceedings. It cannot now obtain a right to condemn the same property i...

Excerpt: ... at deposition is GRANTED as to Requests 2 through 6 and DENIED, without prejudice, as to Request 1. 3. Defendants' objections to the document request are OVERRULED as to Requests 2 through 6 and SUSTAINED as to Request 1. 4. It appears no issues remain as to the prior motions. As to the deposition, it appears that Defendant has offered deposition dates and Plaintiff has not chosen to go forward pending the motions to compel documents. Unless Def...

Excerpt: ...t Pacifica Senior Living Management LLC; Request for Sanctions in the Amount of $1,660.00; d) Plaintiffs' Motion to Compel Responses to Interrogatories from Defendant St Pauls Modesto, LP; Request for Sanctions in the Amount of $1,660.00; e) Plaintiffs' Motion to Compel Responses to Interrogatories from Defendant St Pauls Way, LLC; Request for Sanctions in the Amount of $1,660.00; f) Plaintiffs' Motion to Compel Responses to Interrogatories from ...

Excerpt: ...he basis that Plaintiff has established the requirements for issuance of a writ of possession, subject to the filing of an undertaking. (Code Civ. Proc. §512.060.) With regard to the issue of valuation as it pertains to the amount of the undertaking required by Code Civ. Proc. §515.010 et seq., the information presented in the application demonstrates that Defendants possess an interest in the collateral that is the subject of the Loan & Securi...

Excerpt: ...fees order is void. Plaintiff appears to wish to elect to retain the remaining award, but is entitled to reject the remaining award with the provision that the default will be set aside. Thus, unless Plaintiff elects to essentially restart the case, the court will enter an amended default judgment of $13,649.38. The court denies attorneys' fees on the instant motion. Rationale: Here, the defaults were entered in January of 2020 but Defendants' mo...

Excerpt: ...ically, the motion lacks a discussion of the reasonableness of the proposed settlement as compared to the maximum and practical exposure of Defendant on the claims asserted herein. Therefore, Plaintiff shall submit shall submit supplemental briefing addressing these issues no later than March 19, 2020. ...

Excerpt: ...unauthorized, the Court could simply strike the pleading. However, it appears that the amended complaint at least partially addresses the issues Defendant raises. Moreover, Defendant's demurrer and motion to strike omitted controlling authority that public entity liability for statutory or constitutional claims outside the TCA are not subject to the claim presentation requirement. (See, i.e., Civ. Code, §§ 3479-3503 [nuisance], Nestle v. City o...

Excerpt: ...nts finding Plaintiff is not entitled to deduct its own fees and costs from the settlement fund before interpleading the funds with the Court for adjudication of the competing interests thereto. While interpleader is an appropriate remedy to the disputes arising from the fact that the settlement was too small to pay all lienholders, much less to leave anything for the plaintiff in the underlying litigation, the entire fund must be interpleaded. (...

Excerpt: ... sustained with leave to amend. Accordingly, the general demurrer is moot and need not be addressed. Defendant Yasini shall be given thirty (30) days leave to file a first amended answer as follows: first, all affirmative defenses shall be separately numbered, with one title for each defense; second, regarding the statute of limitations, Defendant shall either cite the particular statutory section and, if applicable, the particular subdivision, w...

Excerpt: ... is therefore untimely even in the absence of formal opposition. (Code Civ. Proc., § 435(b); Cal. Rules of Ct., rule 3.1322(b); Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (TRG 2021) Ch. 7(I)-B, § 7:166.1 [Presumably, because a motion to strike and a demurrer must be brought at the same time, a motion to strike must be filed within 10 days after service of the answer].) If the motion were timely filed, the Court would be inclined to d...

Excerpt: ...ry is overdue, but claim that a combination of circumstances from clerical error to pandemic-related quarantine delayed timely responses. Defendants do not, however, address why appropriate extensions were not first requested and, if not forthcoming, why leave of court was not sought to extend the deadlines, as provided in the Civil Discovery Act. While the Court notes Defendants' claim that compliant responses will be provided, Plaintiffs' Reply...

Excerpt: ...cations as constructed and/or as it existed at the time of the subject accident. (See, e.g. UMFs 26-32.) The Court's determination as to Defendant's failure in this regard is based on the following rulings on Plaintiff's objections to Defendant's supporting evidence: Objections 1, 2, 5, 6 and 7 are sustained on the grounds stated. Objections 3 and 4 are overruled to the extent the subject testimony relates to the scope of the design of the subjec...

Excerpt: ...of costs appear to be proper and reasonable, as do all but one of the “costs” included on Petitioner's memorandum here, the burden is on the party challenging costs to show otherwise. Ladas v. California State Auto. Assn (1993) 19 Cal.App.4th 761. The challenging party may meet its burden by showing the entire costs bill is improper rather than challenging particular items. However, conclusory allegations that an item was neither necessary no...

Excerpt: ...r is continued to coincide with the Motion to Compel Deposition of PMK. The Court finds that the meet and confer efforts on both sides were insufficient. Counsel are therefore ordered to revisit this dispute in an effort to resolve it in good faith, keeping in mind the following parameters: first, the Court does not consider that any of the requests at issue are outside the broad scope of civil discovery; second, an objection that a request is va...

Excerpt: ... Plaintiffs. The question is whether under these unusual circumstances, the “determinations” to be made are those interpreted by the contract. The broad language of the contract appears to intend for arbitration to be inclusive. Plaintiffs have filed an arbitration demand pursuant to Section 20 of the policy to resolve disputes over six specific determinations by NAU. Once those determinations are made, the parties may return for further proc...

Excerpt: ...uses of Action); MOTION FOR JUDGMENT ON THE PLEADINGS DENIED, as MOOT. a) With regard to the Fourth Cause of Action, the motion is moot based on the Court's order granting summary adjudication of that claim in favor of Defendant on 10-9-2020. With regard to the Third Cause of action, the Court finds that the pleading states facts sufficient to support the stated cause of action. b) As a preliminary matter, the Court exercises its inherent authori...

Excerpt: ...ed almost entirely upon activity that is protected pursuant to Section 425.16. The protected activity relied upon was not “incidental” as Plaintiff argues – it was fundamental. Indeed, the fact that Plaintiff dismissed his SAC rather than oppose the special motions to strike is an admission of this fact. Whether broadly construed as part of the peer review process, or as statements and comments made as a matter of public interest – i.e. r...

Excerpt: ... Therefore, the Court finds that Plaintiff is entitled to a Code-compliant response in this regard as well as to the opportunity to conduct the requested inspection of the subject premises and/or items. Defendant shall serve a verified further response within 14 days and counsel shall meet and confer to select a mutually agreeable date for the further inspection, which shall be completed no later than March 31, 2021. The Court further finds that ...

Excerpt: ...bitration initially now constitutes a waiver of any opposition in this proceeding is unnecessary for decision because the relevance of Plaintiffs' pre-litigation demand for arbitration is that it removes any dispute over the existence and bilateral nature of the contractual provisions. Thus, the key issue is whether the claims raised in Plaintiffs' First Amended Complaint arise out of and are subject to said arbitration provisions. The Court find...

Excerpt: ...ed a general release of all claims as well as a waiver of Civil Code section 1542 (Exhibit U to Defendant's Compendium of Evidence.) This language contained in the general release is plain on its face. Plaintiff argues that the release is invalid and unenforceable because she did not believe she was releasing and waiving all previous acts of discrimination, harassment and retaliation. She contends that there must be independent evidence, separate...

Excerpt: ...t was granted leave to amend his answer on December 4, 2020. As Plaintiff correctly notes, thirty (30) days from December 4, 2020 is January 3, 2021 (a Sunday). Thus, pursuant to statute, Defendant had until January 4, 2021 (Monday) to file his amended (verified) answer to Plaintiff's verified first amended complaint. Defendant failed to file an amended (verified) answer on or before January 4, 2021. Pursuant to Code of Civil Procedure section 43...

Excerpt: ...court OVERRULES the demurrer. The FAC retains allegations that defendants Trevethan and Gordon violated Education Code section 44113, and the demurrer gives no reason to think these allegations are insufficient. (See, e.g., Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of th...

Excerpt: ...action is hereby stayed pending conclusion of arbitration proceedings. (Code Civ. Proc., § 1284.1.) b) It is well-settled and not disputed in this motion that any PAGA claims raised by Plaintiff in the case at bar are not subject to contractual waiver by a binding arbitration agreement or otherwise. (Iskanian v. CLS Trans. Los Angeles (2014) 59 Cal.4th 348; of ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 181-182.) Rather, the dispute is whet...

Excerpt: ...party to an administrative proceeding may seek judicial review of any final order or decision rendered by a state or local agency.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 137) In reviewing administrative proceedings under section 1094.5 that do not affect a fundamental right, such as an attempt to obtain a license to engage in a profession or business, the trial court reviews the whole administrative record to determine whether the findings are ...

Excerpt: ...rder Deeming Admitted Truth of Facts against Cecil Mata and Request for Sanctions; d) Defendant's Motion to Compel Responses of Plaintiff Cecil Mata to Request for Production of Documents and Request for Sanctions; e) Defendant's Motion to Compel Responses of Plaintiff Cecil Mata to Request Special Interrogatories and Request for Sanctions – Motions (a - (e — HEARING REQUIRED. The Court's current inclination is to grant all motions to compel,...

Excerpt: ...ary Sanctions – GRANTED, sanctions imposed in the reduced amount of $1,700. a) The motion is moot to the extent to which it requests an order compelling defendant to produce a deponent, as defendant has agreed to do just that. The court orders defendant to produce a deponent in response to plaintiffs' subpoena within 30 days of this order. The court also orders that deponent to produce documents on the following conditions: All objections based...

Excerpt: ...dicial Notice is GRANTED. Defendant James Scott Blevins' Motion for Summary Judgment GRANTED, and unopposed. The Motion for Summary Adjudication is moot. Plaintiff having filed no opposition, no response to the Separate Statement of Undisputed Facts (SSUF), and no objections to the Declarations and Evidence submitted by Defendant, the Court finds that Defendant has met his burden of demonstrating on the basis of all the moving papers, declaration...

Excerpt: ...actually be awarded under section 1021.6 until “the trier of fact determine[s] that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or . . . the indemnitee ha[s] a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict” (§ 1021.6), the court sees no reason why the request for fees should not be made in the pleadings, on the assumption that...

Excerpt: ...extensive negotiations before experienced mediators in the field of wage and hour matters and, as such, to be fair and reasonable for purposes of preliminary approval. (Cal. Rules of Ct., rule 3.769(c); Wersha v. Apple Computer (2001) 91 Cal.App.4th 224, 239-240; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803.) The proposed order appears appropriate and may be submitted to the Court for final signature absent objection by Defendants, if ...

Excerpt: ...go v. Empire Today LLC (2012) 205 Cal.App.4th 1138,1145.) Here, while plaintiff has demonstrated something in the way of procedural unconscionability (but cf. Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 1248 [failure to provide documents in Spanish dis not establish unconscioability without evidence that Spanish translations were requested or that they would have helped]), she has not shown substantive unconscion...

Excerpt: ... to Form Interrogatories, Set One, from Defendant Kooger Farms, LLC and Conditional Request for Sanctions in the Sum of $1,050; d) Plaintiff's Motion to Compel Further Responses to Form Interrogatories, Set One, from J. Jesus Munoz Velasco and Conditional Request for Sanctions in the Sum of $1,050 – a) – d) – MOOT as to all issues raised except whether surveillance recordings of Plaintiff are to be immediately produced to Plaintiff. As to t...

Excerpt: ...strating that both the convenience of witnesses and the ends of justice will be promoted by the requested change. (Pearson v. Superior Court (1962) 199 Cal.App.2d 69.) Even if the motion were procedurally proper at this juncture, it appears that Defendant's request does not establish that a transfer is warranted in this instance. ...

Excerpt: ...trating on the basis of all the moving papers, declarations and evidence that there is no triable issue at to any material fact with respect to each and every cause of action in Plaintiff's First Amended Complaint, and that therefore SSH is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c), (b)(3); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408 [p...

Excerpt: ...ction is valid. Indeed, Defendant's own citation of Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268 recognized there is a split of authority as to whether duplication alone is a valid basis for general demurrer. (Palm Springs Villas II Homeowners Assn., Inc., supra, 248 Cal.App.4th at 290, fn. 12, citing Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889–890 [“BTC went on to arg...

Excerpt: ...ity with regard to the claim of negligence herein and that there are no issues of material fact with respect thereto. (Gov. Code §§844.6, 845.6; Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4 th 1051.) Further, in the absence of any opposition, Plaintiffs have failed to offer evidence which raises a triable issue of material fact in that regard. Therefore, the motion is granted and judgment shall be entered in favo...

Excerpt: ...mount. Supplying responses after the motion is filed does not moot the issue of monetary sanctions. (Code Civ. Proc., § 2030.290(b); Code Civ. Proc., § 2023.030; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390. Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-7, § 8:1136 [The motion to compel may be heard even if tardy responses are served after the motion is filed. Unless the propou...

Excerpt: ...aims as well as a waiver of Civil Code section 1542. (Exhibit U to Defendant's Compendium of Evidence.) This language contained in the general release is plain on its face. Plaintiff argues that the release is invalid and unenforceable because she did not believe she was releasing and waiving all previous acts of discrimination, harassment and retaliation. She contends that there must be independent evidence, separate and apart from the release i...

Excerpt: ...hese motions were last before the Court in December 2020. While some issues remain outstanding, it appears that they may not survive the taking of two depositions. Accordingly, this Court orders that Travelers Insurance shall produce the person or persons most knowledgeable, as noticed in Core Brands' Third Amended Notice, for deposition by February 15, 2021. Travelers and Modesto City Schools are entitled to object to questions asked in the cour...

Excerpt: ...San Diego v. Gorham (2010) 186 Cal.App.3d 147, 158). In addition, Code of Civil Procedure section 128, subdivision (a)(8), gives the Court the ability to “amend and control its process and orders so as to make them conform to law and justice.” See, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582; Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72 Cal.App.3d 675. Equity and justice requires that this judgme...

Excerpt: ...tance, that any allegations that are not legal conclusions are denied. Finally, the argument that Defendants' affirmative defenses are not true is not an appropriate claim for this stage of the proceedings, when the Court is required to accept the allegations of the challenged pleading as true, except insofar as they are obviously untrue on their face or as demonstrated by facts of which the Court may take judicial notice. The Court further notes...

Excerpt: ...tiffs as a matter of law. The Court finds that the Defendant has met its burden with regard to the First, Second, Fourth, and Fifth Causes of Action at issue herein. (The Third Cause of Action will be discussed below.) The burden then shifts to Plaintiffs to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiffs have met that burden with regard t...

Excerpt: ...t. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiffs have failed to meet their burden in this regard, specifically with regard to the element of causation. Despite submission of an expert declaration, Plaintiffs have failed to demonstrate the existence of a material factual dispute as to whether Dr. Barandica's acts and/or omissions during his care and treatment of the patient constituted a substantial factor in the patient's injuri...

Excerpt: ... Expectations, as enacted by the City and made applicable to the construction of single-family residences. This failure constitutes an abuse of discretion in the City's approval of Mr. Noordeweir's applications in April and June of 2020. Therefore, the Court finds that the requested writ of mandate should issue and the City should be directed to comply with the subject procedure in connection with Mr. Noordeweir's applications. In view of the Cou...

Excerpt: ... Based upon review of the moving and supporting papers, the Court finds that the allegations in the Complaint are insufficient to support a claim for punitive damages, and the motion is GRANTED as to such allegations and the prayer for punitive damages. However, it appears that Plaintiff may be able to assert additional facts in support of his claim in this regard. Therefore, Plaintiff shall file his First Amended Complaint within 20 days. Furthe...

Excerpt: ...led to demonstrate that the arbitration provisions were intended to convey a benefit to Defendant. Lastly, Defendant has not demonstrated that the allegations against it are so intertwined with the contract between Plaintiff and her non- signatory employer, who is not a party herein, that arbitration should be compelled under the doctrine of equitable estoppel. ...

Excerpt: ... in the action. (Nelson v. Anderson (1999) 72 Cal.App.4 th 111, 131; Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court further finds that Plaintiffs have offered adequate substantiation as to certain of the challenged costs but have failed to offer adequate substantiation as to other challenged costs. The Court acts within its discretion in determining whether costs are excessive and should be reduced. (Levy...

Excerpt: ... is entitled to an order compelling Ms. Lebow to provide answers, without objection, to Form Interrogatories, Set One, within 30 days of service of notice of entry of the Court's order. With regard to the motion concerning Plaintiff's Request for Admissions, Set One, however, the Court finds that the subject discovery did not contain the proper caption and was not directed to Ms. Lebow as a defendant in the instant case. Therefore, the motion is ...

Excerpt: ...ifies as the prevailing party for the purposes of recovering her fees under the Court's holding in Santisas v. Goodin (1998) 17 Cal.4 th 599. While the Court recognizes that the voluntary dismissal of the action does not confer prevailing party status on Defendant on the contract claims under Civ. Code §1717(b)(3), the tort and contract claims arise from common issues, such that they are intertwined and apportionment is not feasible or necessary...

Excerpt: ... unjust hardship. To the contrary this is a straightforward business dispute arising from the alleged breach of an insurance agency contract. Accordingly, paragraphs 57, 58, 59, 65, 66 and 79 of the Complaint and items 3 and 4 of Plaintiffs' prayer for relief are stricken. ...

Excerpt: ...monstrate that the agreement is unenforceable due to unconscionability. The Court does find some measure of procedural unconscionability inherent in the mandatory nature of the agreement. However, the Court finds that any surprise claimed by Plaintiff in connection with Defendant's efforts to compel his claims to arbitration are primarily the result of his failure to read the arbitration agreement before executing the same. Such failure does not ...

Excerpt: ...roperty a lessee is using as a residence, and Plaintiffs were not using this property as a residence, but essentially as a storage area / museum. As Defendants argue, the lease was more in the nature of a commercial lease than a residential lease. However, Plaintiffs argue in their opposition to the demurrer that the unlawful detainer action utilized by Defendants here applied only to a trailer on the property, and not to the storage area / museu...

Excerpt: ...l, or when the proposal was accepted so as to complete the formation of the contract. Defendant is correct that this matters in light of the applicable statute of limitations. The Court finds that the allegations of the second and fourth causes of action are sufficiently alleged so as to state causes of action. The First Amended Complaint alleges that Defendant Rogers was a party to the alleged contract and received a benefit from Plaintiff's wor...

Excerpt: ...t or its covenant of good faith and fair dealing. The demurrer is also sustained as to the twenty-first cause of action, for professional malpractice, which is duplicative of the fifteenth cause of action for professional negligence. The Court does not grant leave to amend as to these causes of action. The demurrer is otherwise overruled. These defendants argue that they cannot be held liable for injuries allegedly inflicted on plaintiff is his o...

Excerpt: ...mely submitted (Code Civ. Proc. §2025.410(a)), did not state valid legal grounds for the refusal to appear, and Defendant has not sought a protective order, which requires a noticed motion. (Code Civ. Proc. §2025.420(a); see St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82.) Therefore, Plaintiff is entitled to an order compelling the appearance of Defendant's Person Most Knowledgeable as to the designated subjects of e...

Excerpt: ... Development Agency, while in the pending arbitration she represents no one but herself. As the Court of Appeal held recently in Jaboe v. Hanlees Auto Group (2020) 53 Cal.App.5 th 539, 557: “Because a PAGA claim is representative and does not belong to an employee individually, an employer should not be able dictate how and where the representative action proceeds.” Nor has Defendant demonstrated that abatement is appropriate. A review of the...

Excerpt: ...ent, whether written or oral. The applicable statute of limitations is therefore two years under Code of Civil Procedure, section 339. As the original cross-complaint was not filed until March 12, 2020, six years after Carlson left the property, the statute of limitations has run. Nor does the doctrine that a cross-complaint “relates back” to the filing of the original complaint save this cause of action, as the complaint was filed on April 1...

Excerpt: ...annot dispute that he has received payments from the at-fault party and his workers' compensation carrier that exceed his $50,000 per person underinsured motorist (UIM) policy limit – even conceding that the settlement of the workers' compensation coverage lien reduced the amount of compensation paid to Petitioner. Section 11580.2 precludes Petitioner from recovering twice for the same injury. See e.g. Rangel v. Interinsurance Exchange (1994) 4...

Excerpt: ... filing of a claim for property damage only led to a comedy of errors. Plaintiff's counsel prepared a claim for both property damage and bodily injury, but somehow neglected to send it to the City. In the meantime, the City rejected the original claim. When Plaintiff's counsel received the rejection, she logically concluded that the rejection applied to the claim she thought she had filed. This new evidence brings all of the facts into context, a...

Excerpt: ... to pay all lienholders, much less to leave anything for the plaintiff in the underlying litigation, the entire fund must be interpleaded. (Code of Civil Procedure section 386; see also Rutter's Guide to Civil Procedure Before Trial, Ch. 2-F (2019) at 2:470.) Plaintiff is granted 30 days, or until October 5, 2020, to file and serve an amended complaint.” Plaintiff has now filed a First Amended Complaint that does not correct the defect found in...

Excerpt: ...) The award in Plaintiff's favor represented only unpaid rents which Defendant conceded he owed at the outset, and both parties acknowledged that Defendant's attempt at payment of the same was rejected by Plaintiff in favor of pursuing his claims herein. Therefore, the Court concludes that Plaintiff did not realize his primary litigation objective and the resulting judgment represented a mixed result of both good news and bad news for both partie...

Excerpt: ...ard to the Third and Fifth Causes of Action. The Third Cause of Action for Specific Performance fails to allege facts supporting the conclusion that Plaintiff has no adequate remedy at law. The Fifth Cause of Action for Promissory Estoppel fails on the grounds that the First Amended Complaint admits the existence of an enforceable contract. While it is presently unclear to the Court whether Plaintiff will be able to allege additional facts to cor...

Excerpt: ...gnosed with any asbestos-related disease or condition, undergone any BAP1 gene testing, and, if so, where the testing was performed. Plaintiffs objected on the grounds that the interrogatories are not relevant nor reasonable calculated to lead to the discovery of admissible evidence; breach of the attorney-client privilege and work-product doctrine; the invasion of the privacy of third parties; and that the information sought constitutes prematur...

Excerpt: ...ve a proper deposition notice in compliance with Code Civ. Proc. §§2025.270 and 1010.6(a)(4)(A). Accordingly, she has not demonstrated entitlement to the requested relief. 2. The Court finds that the Plaintiff's supplemental disclosure is improper under the circumstances, as the importance of expert testimony on the standard(s) of care applicable to the defendants herein and the calculation of repair damages appear to be fundamental issues whic...

Excerpt: ...ch has not agreed to arbitrate and is not bound by the plaintiff's agreement to do so. As the court noted in Correia v. N.B. Baker Electric, Inc. (4 th Dist. 2019) 32 Cal.App.5 th 602, 622: “These courts [that is, the California Courts of Appeal that have considered the question] have uniformly held that an employee's predispute agreement to arbitrate PAGA claims is not enforceable without the state's consent.” See also Collie v. Icee Co. (4 ...

Excerpt: ...n that the Motion to Intervene is untimely. The cases Plaintiff cites, Allen v. California Water &Tel. Co. (1947) 31 Cal.2d 104, 108 and Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 664, both deal with motions to intervene brought after a trial or hearing, and are inapplicable to the present case. In addition, Plaintiff has been disingenuous about its failure to notify CSAA of the default judgment; he served another insurance company i...

Excerpt: ... asks that the following excerpts be sealed from the public:  CVMG's Second Amended Complaint at 5:5-10, 9:28-10:3, 10:21-22, 10:28, 11:1-2, 35:26, 36:2-3; and  CVMG's “mootness brief” at 2:10, 6:10-20. These are the same excerpts that defendant asked this Court to seal a few months back. As a refresher, this Court denied the request in pertinent part as follows: “Based on the foregoing, it is impossible to effectively seal ‘financi...

Excerpt: ...dants' granted Plaintiffs permission to use the property now claimed to be a prescriptive easement. The parties should be prepared to discuss the proper date and time for such a hearing. In the interim, the Court renews its Temporary Restraining Order until such time as the hearing takes place and is ruled upon. Plaintiffs' evidentiary objections to Defendants' Opposition to Motion are sustained. Plaintiffs' evidentiary objections to the Declarat...

Excerpt: ...for claims to be made against governmental employees, not governmental entities. No leave to amend is granted as to the claim against the District. The First Cause of Action is adequately pleaded as to Defendant Gordon. Defendants asserts that Gordon did not exercise supervisory authority over Plaintiff, but that question is one of fact; as to pleading, Plaintiff has pleaded his claim adequately. The Complaint alleges that Gordon specifically com...

Excerpt: ...o him, printing it out and striking the provision before signing it and returning it to Petitioner, or following the specific procedure outlined in the arbitration procedure itself, that is, by sending a notarized letter to his supervisor and to human resources. Mr. Nguyen relies heavily on Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4 th 83 to support his opposition to the petition. However, Armendariz is specifically ...

Excerpt: ... not a reason to refuse to stay this matter. Plaintiff's argument that this case is aging and that a stay of discovery will cause memories to blur and electronic data to decay gives pause, but the likely very short duration of a stay poses little possibility of prejudice to Plaintiff. Plaintiff's suggestion that the existence of another wage and hour class action proceeding in the Merced County Superior Court should preclude a stay is not persuas...

Excerpt: ... employees, not governmental entities. No leave to amend is granted as to the claim against the District. The First Cause of Action is adequately pleaded as to Defendant Gordon. Defendants asserts that Gordon did not exercise supervisory authority over Plaintiff, but that question is one of fact; as to pleading, Plaintiff has pleaded his claim adequately. The Complaint alleges that Gordon specifically complained about Plaintiff's job performance ...

Excerpt: ...Prof. Code §10023 applies to the relationship between Plaintiff and Defendants; that the criteria set forth in Unemp. Ins. Code §650 are met here; and that Lab. Code §2750.3 (d)(1), now enacted as Lab. Code §2778(b)(1), bars Plaintiff's claim. Likewise, the Court previously ruled that a challenge to the constitutionality of such legislation based on due process concerns fails because the newly enacted Labor Code provisions did not change the ...

Excerpt: ...�clear and convincing” evidence – it must be highly probable that the challenged act was the result of undue influence. David must present evidence that raises more than a suspicion that undue influence was used. He must prove circumstances inconsistent with voluntary action by the testator. Estate of Mann (1986) 184 Cal.App.3d 593, 607. Here, that burden is not met sufficient to warrant a writ of attachment. b) Christopher Duke's Order to Sh...

Excerpt: ...Esq. Exhibits B-K thereto lack authentication and are inadmissible as described due to lack of foundation and lack of personal knowledge of the declarant. (Evid. Code §403, 702.) Exhibits L-M are not submitted in compliance with the requirements set forth in Cal. Rules of Ct., rule 3.1116. For instance, in Defendants' Separate Statement, Undisputed Fact Nos. 11-43 cite exhibits, and only exhibits, supporting the facts. Those exhibits are referre...

Excerpt: ...eparate statement. The Court has concerns, however, with regard to the narrow scope of evidence provided in support of the motion, particularly in view of the apparent existence of controverting evidence and Defendant's failure to identify and address the same. Had Defendant properly identified such items of evidence, the Court questions whether Defendant would have been able to carry his initial burden on the above-identified issues. In any case...

Excerpt: .... While Defendant Duarte is responsible for setting wages at the highest level, he has no involvement in determining whether the time needed to punch a time clock or doff protective equipment should be paid or not. Nor does he instruct individual employees regarding when their breaks start or end. While he acknowledges that he has responsibility for making sure that rest breaks and lunch periods are provided to employees in the first instance, th...

Excerpt: ...dence demonstrating the existence of a material factual dispute preventing adjudication of the subject claims. Plaintiff has failed to carry her burden in this regard. Specifically, Plaintiff submitted no admissible evidence establishing that Defendant McMillian concealed or misrepresented material information in connection with her fiduciary duty to Plaintiff concerning the subject transaction. Accordingly, Plaintiff cannot establish the require...

Excerpt: ... 22 [“A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments”].) Because the Court cannot take judicial notice of the testimony and other admissions by Plaintiff in the preceding federal litigation, the Court cannot conclude that Plaintiff suffered no injury. The Cour...

Excerpt: ...fficiency of the plea in abatement, and then to order the actions consolidated, regardless of defendant's opposition.” (5 Witkin, Cal. Proc. 5th Plead § 1138 (2020); Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 217-218.) Second, there are claims raised in this case that are not at issue in either of the other two pieces of litigation Defendant points to. The Dancy matter concerns only exempt employees, while one of the subclasses in ...

Excerpt: ...es not oppose Defendant's evidence establishing that the nurses and technicians in its employ met the standard of care with regard to her treatment, and Defendant is entitled to adjudication of that issue. Plaintiff opposed the motion on the sole issue of whether the hospital might nevertheless be held liable for Dr. Brock's conduct under an ostensible agency theory. In that regard, Plaintiff submitted evidence that the hospital's notice to her r...

Excerpt: ...ue with regard to the scope of Plaintiff's authority to agree to the subject arbitration provisions pursuant to the power of attorney she held for her mother. The law dictates that, regardless of the inclusion of a delegation clause in the subject agreement, this foundational issue must be determined by the Court. (Bruni v. Didion (2008) 160 Cal.App.4 th 1272, 1285.) Therefore, the Court finds that the power of attorney authorized Plaintiff to en...

Excerpt: ... of Starstone National Insurance Company – DENIED. a) Defendant, as the moving party, appears, on the face of the moving papers, to have met its burden of demonstrating entitlement to adjudication of the challenged causes of action herein. The Court has concerns, however, with regard to the narrow scope of evidence provided in support of the motion, particularly in view of the apparent existence of controverting evidence in the deposition of Mr...

Excerpt: ...set forth in Corp. Code §800(b). Moreover, matters subject to judicial notice demonstrate that the composition of the corporate entity's board of directors changed after the submission of the original Complaint, such that Plaintiff is now required to demonstrate compliance with Corp. Code 800(b) with regard to the board as currently comprised. (Apple, Inc. v. Superior Court (2017) 18 Cal.App.5 th 222.) Therefore, the allegations are insufficient...

Excerpt: ...er, that Aspiranet knew of and ratified the harmful conduct of its counselor to Plaintiff. None of the various arguments Aspiranet raises takes this into account. Therefore, Aspiranet argues that the sexual abuse of Plaintiff by one of its counselors was outside the course and scope of that counselor's employment. However, Plaintiff alleges that Aspiranet knew of the sexual abuse, but continued to allow the counselor to take her under-aged client...

Excerpt: ...nds that Defendant, as the moving party, has met the burden of establishing its entitlement to judgment on the entire action herein. Plaintiff has not established a statutory basis upon which to pursue a negligence theory against Defendant under the facts alleged herein. Assuming arguendo that the City of Oakdale Municipal Code §4-13 represents the duty alleged in this matter, this Court cannot conclude that such duty is mandatory within the mea...

Excerpt: ...te elements clear. Defendants argue that the statute of limitations has run as to the cause of action for breach of the implied covenant of good faith and fair dealing. As to the facts alleged in the First Amended Complaint in support of the cause of action, Defendants are correct. However, in the event that Plaintiff is able to allege other facts that would support such a cause of action, the Court will not foreclose the attempt. Plaintiff is th...

Excerpt: ...ELD LLC (“Pontus Mag”) against cross‐defendants BARBER AUTO MALL PROPERTIES, L.P.; BARBER FAIRFIELD MANAGEMENT COMPANY, LLC; and RONALD L. BARBER (“Barber Defendants”) is subject to arbitration and the scope of that arbitration. It is undisputed that the Real Estate Purchase Agreement (“REPA”) assigned to Crosscomplainant contains an arbitration clause. Any party to a contract containing an arbitration provision may file a petition ...

Excerpt: ... Executive's fault in this matter could be for as much as 100% of Plaintiff's damages. Inasmuch as Plaintiff has no viable claim against Executive itself, the statute of limitations having run, the settlement must be measured against the claim made by Core for indemnity and contribution, and this settlement is out of proportion to Executive's potential liability for Core's claims. Executive has much more insurance available than it is proposing t...

Excerpt: ...ion for arbitration shall contain a declaration, under penalty of perjury, stating whether (i) the insured has a workers' compensation claim; (ii) the claim has proceeded to findings and award or settlement on all issues reasonably contemplated to be determined in that claim; and (iii) if not, what reasons amounting to good cause are grounds for the arbitration to proceed immediately. Although Claimant's motion claimed that a demand for arbitrati...

Excerpt: ...e same injury, and the same instrumentality. Therefore, Defendant's challenge to the subject causes of action on statute of limitations grounds is DENIED. With regard to the enumerated items in Defendant's notice herein, Plaintiffs concede that Items 1 and 7 set forth in Defendant's notice are erroneous and require correction. In view of that concession, the motion is GRANTED as to those items and Plaintiffs are granted 20 days leave to submit th...

Excerpt: ...ddress Plaintiff's current ill health, or otherwise. While this Court is sympathetic to Plaintiff, and wishes him a swift recovery, the failure to respond to the discovery or Plaintiff's counsel's failure to communicate with defense counsel is improper. The Court therefore grants Plaintiff 15 days to respond to Defendant's Requests for Production of Documents, Form Interrogatories, Special Interrogatories and Deeming Requests for Admission. Furth...

Excerpt: ...dividuals have not left the Hospital's employ, and to get further information about them at that time, Plaintiff may file supplemental interrogatories, especially as Defendant has agreed to allow Plaintiff more discovery than that to which he is entitled under the Code of Civil Procedure. None of the case law cited by Plaintiff requires further information be provided regarding witnesses who are employees of a party. Nor does this holding require...

Excerpt: ...d Complaint for Reverse Validation; b) Plaintiff's Motion for Stay of Proceedings; c) Defendants Motion to Sever Grassland Groundwater Sustainability Plan Claims; d) Defendants' Motion for Separate Trial; e) Defendant Aliso Water District Groundwater Sustainability Agency's Motion to Change Venue; f) Defendant Farmers Water District Groundwater Sustainability Agency's Joint Motion to Sever and/or to Transfer and Change Venue; g) Defendant County ...

Excerpt: ... sale of the property in compliance with Code of Civil Procedure sections 873.600 through 873.690 The referee shall have authority to contract for independent services that are reasonably necessary to obtain the best outcome for the parties, including hiring of a real estate agent, disposal of garbage and abandoned personal property, may give authority to have limited, and may give access to the property for purposes of clean-up and removal of pe...

Excerpt: ...f action lies against a real estate agent for allegedly providing incorrect information regarding the value of a property, whether that information is provided negligently or, as Plaintiffs allege, deliberately in order to obtain a commission before its listing agreement expired. Defendant further makes arguments, particularly in its Reply, that depend upon the proof of facts that are not alleged in the First Amended Complaint and not susceptible...

Excerpt: ...– DENIED, as MOOT in view of the Court's ruling on the demurrer. 1. The Court finds that the allegations in the First Amended Cross-Complaint fail to state facts supporting the stated causes of action against the moving parties herein, Roberto Cuellar, Jr. and Robert Cuellar, Sr. Of note, while the demurrer appears to make certain arguments on behalf of the other named Cross-Defendants, moving counsel herein does not appear to represent such pa...

Excerpt: ...y improper and deprived Plaintiff of an opportunity to respond to Defendant's arguments in that regard. Nevertheless, the Court finds that a determination as to the enforceability of the delegation clause is foundational to the permissible scope of the Court's decision with regard to the other issues presented by the instant motion. (Aanderud v. Superior Court (Vivint Solar Developer, LLC) (2017) 13 Cal.App.5 th 880.) Therefore, the hearing shall...

Excerpt: ...otion reveals that such disputes exist as to the uniformity, application and effect of the Defendant's rest policies, negating the Plaintiff's ability to demonstrate on a classwide basis or as a matter of law, as applied, the result of the Defendant's policies establishes the Labor Code violations alleged. While Plaintiff is certainly correct that Defendant may not contravene binding judicial admissions made in response to lawful requests for adm...