Excerpt: ...es/officers of the entity Plaintiff, counsel for Plaintiff, percipient witnesses on essential disputed issues, and non‐retained expert witnesses on behalf of Plaintiff, the Court has concluded that the informed‐consent exception contained in California Rule of Professional Conduct 3.7 is inapplicable under the circumstances, due to the risk of prejudice to the defendants and to the integrity of the judicial process. In reaching this conclusio...

Excerpt: ... for Admission, Set One, within the next ten (10) days. The Court explicitly finds that Plaintiff Pauline Doan's opposition to this motion to compel was unjustified. If Plaintiff is indeed incapacitated and unable to respond to discovery (a fact which was not established by the evidence Plaintiff submitted in opposition to the motion), it is Plaintiff's counsel's duty to determine how best to advance Plaintiff's claims herein. But if Plaintiff ch...

Excerpt: ...20 and 22, and sustained as to No.'s 18 and 21. The liability of the Dragon defendants is based on whether or not the Dragon defendants can be liable as successors in interest to Vantage Trailer, Inc. Plaintiff's Response to Defendants' UMF No. 3. Defendants have shown that no issues of material fact exist which support a successor in interest claim. The Agreement called for Vantage Trailers to sell certain assets to Dragon Products related to th...

Excerpt: ...e Court and found to be insufficient in connection with Cross‐Defendants' demurrers to the original and First Amended Cross‐Complaints. Additionally, the Court notes that the motion is procedurally deficient in that it fails to comply with the requirements of Cal. Rules of Court, Rule 3.1324. Lastly, Cross‐Complainants fail to explain the reason for the delay of over three years since the filing of the original cross‐complaint in April 20...

Excerpt: ... Inc. v. Moriana upon the Court's finding of a valid enforceable arbitration agreement between the parties. (Viking River Cruises Inc. v. Moriana (2022)142 S.Ct. 1906). Accordingly, Plaintiff's individual PAGA claim is hereby ordered to arbitration. However, the Court finds that the issue of whether Plaintiff retains any ability to pursue a representative PAGA claim despite the existence of the arbitration agreement appears to be an open question...

Excerpt: ...ath, 4) negligent infliction of emotional distress, and 5) violation of patient's rights. Defendant's moving separate statement sets forth thirty‐nine (39) undisputed material facts (UMFs) – many of them repeated for each cause of action – focusing on two legal issues – first, that the Defendant met the applicable standard of care, and second, that Defendant did not cause the injuries Plaintiffs complain of in their complaint. Defendant a...

Excerpt: ...onally, reconsideration of the denial of a summary judgment motion cannot be sought on the 10‐ day notice period set forth in CCP Section 1008, because this would bypass the procedural protections of CCP Section 437c afforded to parties opposing summary judgment, such as the requirement of 75 days' notice. Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal. App. 5th 239, 243. Finally, the Court finds that it did not err in denying de...

Excerpt: ... GRANTED, and unopposed. Motions (a) – (b): The Court finds that each motion was properly noticed and timely served, that no opposition was filed by Plaintiff and that no responses were timely served by Plaintiff. Accordingly, Plaintiff is ordered to serve complete and verified responses, without objections, within fifteen (15) days of this Order. Motion (c): The Court finds that this motion was properly noticed and timely served, that no oppos...

Excerpt: ...state cannot bring suit on its own but must proceed through the appropriate trustee, executor, or administrator. (See, e.g. Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344.) Moreover, as to the claims based on the subject contract (deed of trust), the Homeowner's Bill of Rights, and the foreclosure sale, the individual plaintiffs have failed to allege sufficient facts demonstrating their capacity to assert these claims herein. As Plaintiffs ...

Excerpt: ...rovided. Therefore, the request for an order compelling the same is DENIED, as MOOT. With regard to the request for sanctions, however, it appears that Plaintiffs' failure to comply with the statutory provisions for responding to the subject discovery necessitated the instant motion and Plaintiffs have not demonstrated substantial justification for their failures in that regard. Therefore, the Court finds that Defendant is entitled to an award of...

Excerpt: ...e names of and information related to Defendant's former pupils and employees. Defendant's students are further protected from the disclosure of said information by the California Education Code §§ 49075 and 49077. Plaintiff's motion for further responses to Form Interrogatories, Set 1, is GRANTED as to 12.2, 12.3, 12.6, 12.7, 14.2 and 17.1, and DENIED as to 12.4 and 12.5 on the grounds of work product and attorney client privilege. Further, an...

Excerpt: ...etween Plaintiffs and Central Valley Nissan that Defendant may rely on the doctrine of equitable estoppel to compel arbitration between Plaintiffs and Defendant. Proceedings herein are accordingly stayed pending completion of arbitration. Defendant's Request for Judicial Notice is GRANTED. The Court acknowledges that Defendant did not demand arbitration pursuant to code, however, resolving the motion based on this point would be a fruitless endea...

Excerpt: ...ended Cross‐Complaint of Nirmal Singh and Ks Chandi; b) Defendants Nirmal Singh, Prabhjot Singh, Matthew Bradford, Marc Robinson & Robinson Bradford LLP's Special Demurrer to Causes of Action 1 Through 8; c) Plaintiffs Kevin Doan, Pauline Doan and Harpreet Dhaliwal's Motion to Quash Subpoena to First American Title – This is an action for corporate mismanagement brought by the majority shareholders against a corporate officer (and minority sh...

Excerpt: ...bridge's Further Responses Requests for Admissions, Set One and Request for Sanctions – GRANTED, in part; DENIED, in part, as MOOT. 1. The Court finds the substance of the dispute over Plaintiff's responses to be moot, based on Plaintiff's service of verified further responses herein. To the extent that Defendant believes such further responses remain insufficient, meet and confer efforts should be undertaken and Defendant may seek judicial int...

Excerpt: ...lure to meet and confer in good faith; Request for Monetary Sanctions in the Amount of $690.00; c) Plaintiff Doctors Medical Center of Modesto, Inc.'s Motion to Compel Further Responses from Defendant, Tiger Lines, LLC to Special Interrogatories, Requests for Admission, Requests for Production of Documents, and Form Interrogatories, Set One; Request for Monetary Sanctions in the Amount of $6,200.50 – DROPPED on the Court's own motion due to the...

Excerpt: ...he delegation clause require the arbitrator to determine which of the Plaintiffs' claims are arbitrable? With regard to the first issue, Defendant has established that decedent Olivia Deloach signed the arbitration agreement on February 13, 2020. The supplemental declarations of Cristina Lewis and Ashlee Gilliam, combined with the original declaration of Deanna Brummell, establish that the decedent's electronic signature was generated a) in the p...

Excerpt: ...tigate matters which pertain to the underlying Alameda County claims. Specifically, Intervenor cannot have a trial of any sort in this county in order to recover as a state representative under PAGA. This Court cannot – and will not – rule on those claims, or take any action which purports to interfere with Alameda County's jurisdiction. ...

Excerpt: ...ration, based on the U.S. Supreme Court's holding in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. The Court further notes that Plaintiff does not appear to oppose the application of Viking River Cruises, supra, with regard to the individual claim. Therefore, the motion is GRANTED in that respect. However, the issue of whether Plaintiff retains any ability to pursue a representative PAGA claim despite the existence of the arbitrati...

Excerpt: ...d the Decedent Shirley Strickland while she received treatment from them. Further, Defendants' evidence establishes that a family practice physician and a physician's assistant cannot be held to the same standard of care as applicable to cardiology experts. The Court further finds that Defendants have established the absence of a triable issue of material fact regarding a crucial element of Plaintiff's medical malpractice claim against Defendants...

Excerpt: ...Chowdhury, which outlines a rule for out‐of‐ commission stoplights. In this case, there was a power outage whose breadth is disputed, but there is no means. Plaintiff has the burden to identify new facts that would cure the defect. The Opposition alleges that the only traffic signals that were inoperable were at the subject intersection but power was working for the other lights in the neighborhood and houses. Regardless of the accuracy of th...

Excerpt: ... same damages as the claim for breach of contract, with the result that no separate claim has been sufficiently stated. (See, e.g. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) Therefore, the demurrer is SUSTAINED with regard to this cause of action; however, the Court will grant Plaintiff leave to amend the pleading in this regard. With regard to the Third Cause of Action for Common Counts, the Court f...

Excerpt: ...eacted negatively because he has had difficult experiences with people who represent themselves. Petitioner goes to great lengths to disparage counsel both in his reply brief and in e‐mails. None of this assists. The Court does not have jurisdiction in this case to stop a party from being represented by the attorney of its choice. Petitioner is strongly advised in the future to make an administrative complaint about an attorney or not rather th...

Excerpt: ...r, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Emphasis added.) See also Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 190 (an appeal from the denial of a motion to compel arbitration automatically stays all further trial court proceedings on the merits). Based on the Court's review of the facts here, the appeal involves “matters embraced in or affe...

Excerpt: ...ndants and each of them failed to verbally discuss the risks of the left eye surgery with Plaintiff, or otherwise clearly communicate and/or ensure that Plaintiff understood the associated risks, benefits, and alternatives.” Plaintiff suggests this is sufficient, but it does not follow that Plaintiff was not given a clear written waiver which Plaintiff understood and agreed to. Plaintiff avers that he did not understand what was occurring, but ...

Excerpt: ... complaint states Defendant sprayed on April 3, 2020. On the other hand, Plaintiff's Motion for Summary Judgment and the exhibits and evidence submitted therewith state Defendant sprayed on April 2, 2020. This material contradiction in the moving papers means Plaintiff has not met his burden to establish no material disputes of fact such that summary judgment or summary adjudication would be appropriate. Even if Plaintiff had met his moving burde...

Excerpt: ... to meet his burden herein. His proffered evidence fails to identify any material factual disputes as to whether the defendant facility had a duty to prevent Plaintiff's voluntary departure from the premises or to prevent his apparent suicide attempt on the night in question. Therefore, Plaintiff has not demonstrated a material factual dispute sufficient to overcome the moving defendants' evidence on these issues. Plaintiff's objections to Defend...

Excerpt: ...its, the Court finds that Defendants, as the moving parties, met the initial burden of establishing prima facie entitlement to judgment based on the submitted evidence. The burden then shifts to Plaintiff to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiff has failed to meet his burden herein. His proffered evidence fails to establish any po...

Excerpt: ... Code §47 under the auspices of Code of Civil Procedure §425.16. The burden then shifts to Defendant and Cross‐Complainant CAO to demonstrate the probability that it will prevail on the merits of the subject causes of action. The Court finds that CAO has failed to meet its burden particularly as there is no evidence that Lucky 8 disseminated the email to other than its customers. Therefore, the Court finds the Cross Complaint filed by CAO sha...

Excerpt: ...ky Stores, Inc. (2000) 79 Cal.app.4th 1081,1086.) There are thirty‐seven issues for adjudication which all boil down to whether each allegation in the complaint were sufficiently alleged in the LWDA Notice. The first three issues address the entirety of the PAGA cause of action. The remaining issues address a “claim within his PAGA cause of action.” California Code of Civil Procedure 437c allows summary adjudication “only if it completely...

Excerpt: ...o two parts, sending one part to arbitration and the other to dismissal. On a motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a prepon...

Excerpt: ... PERB. (UMF #.) Ms. Trevethan was Plaintiff's direct supervisor and Barney Gordon was a member of the Board of Trustees viewed as Ms. Trevethan's supervisors. (UMF 4.) Therefore, there remains a triable issue of material fact as to whether Defendants were “supervisory employees.” (See, Hartnett v. Crosier (2012) 205 Cal.App.4th 685; see also, Caldecott v. Sup. Ct. (2015) 243 Cal.App.4th 212, 223.) The Tort Claim does not have to identify caus...

Excerpt: ...purposes of ruling. Given that there is no evidence, the Court cannot entertain a Motion for Reconsideration. The Represented Defendants allege that they have information indicating the subject emails were available to Plaintiff prior to the last hearing, and that they are in an exhibit. The Court does not have the exhibit. The Court notes that the declaration and motion are legally and factually frivolous, and appear to be done for the purposes ...

Excerpt: ...o sufficiently state the elements of intentional infliction of emotional distress to support Nataley's claim. In addition, it appears to the Court that Plaintiffs' claims for harassment and Ryta's claim for intentional infliction of emotional distress are not viable as a matter of law. If, however, Plaintiffs believe the pleading can be amended to state viable claims in this regard, they shall also be prepared to advise the Court of the authoriti...

Excerpt: ...ion suit, petitioners and similarly‐situated electric customers claim that Modesto Irrigation District built a sizable electric slush fund and – instead of reimbursing electric customers for the surplus – is surreptitiously using the electric slush fund to cover serious losses from its irrigation customers. Petitioners contend (1) that Respondent's practice of robbing Electric Peter to cover Irrigation Paul's debt is an unauthorized tax on ...

Excerpt: ...nce that a valid arbitration agreement exists. The arbitration agreement was signed electronically on November 5, 2020. Ms. Brummell's Declaration indicates it was signed when Gloria Kelley was admitted to the facility. However, the Complaint and Gilliam declaration indicate the admission was actually on October 29, 2020. Michael Kelley denies signing the document. Assuming the document was signed by Michael Kelley and that Ms. Brummell's declara...

Excerpt: ...ount of $1,050.00 – GRANTED, and unopposed; c) Defendant, United Parcel Service's Motion to Compel Responses, without Objections, to Requests for Production of Documents (Set One); Request for Sanctions against Plaintiff Christine Cole as Guardian Ad Litem for Tanner Cole and Sierra Cole in the Amount of $1,050.00 – GRANTED, and unopposed. a) The Court finds that Plaintiff entirely failed to respond to the subject discovery and all objections...

Excerpt: ... but want to delay a permanent injunction based on attempts at compliance. At this stage, whether the attempts at compliance are in good faith or not, they simply have not complied with a court order that they stipulated to. Notably, Defendants refused inspections, did not file timely applications, and did not meet all of the conditions of the order. Defendants' refusal to allow inspections was a direct violation of the order. For example, after ...

Excerpt: ...troversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a preponderance of the evidence. Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 244; Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 967. Neither side disputes the existence of an agreement to arbitrate between plaintif...

Excerpt: ...le Dam Blvd. E in Oroville. (Undisputed Material Fact [hereinafter, “UMF”] 1 and 11; Complaint at 4‐5.) Defendant Wright applied for a position with Foodmaxx on April 2, 2016. (Ex. F.) He denied any felonies and had prior work experience without any adverse employment actions. (Id.; UMF 5). He had not been in any physical altercations prior to the subject incident. (UMFs 4, 22.) He was a meat clerk that did not include any physical altercat...

Excerpt: ...ntrols. Defendant suggests the Family Law Court executed a void order. As Kerns notes, I have no authority to reach the issue. The order in place is absolutely binding on me, and I cannot reach a contrary conclusion. If jurisdiction were only by stipulation, I would be free to make determinations, but in this case jurisdiction has been conferred by court order. The Court continues the case to give Defendant the opportunity to pursue whatever reme...

Excerpt: ...ba Alexander Cohen Hospice House's Demurrer to Plaintiff's First Amended Complaint – OVERRULED, part; SUSTAINED, in part, with leave to amend. a) With regard to the First Cause of Action for Elder Abuse and/or Neglect, the Third Cause of Action for Wrongful Death, and the Fifth Cause of Action for Violation of Patient's Rights, the Court finds the allegations sufficient at the pleading stage to state the challenged claim. Therefore, the demurre...

Excerpt: ... Watsonville, California. The operative pleading is the First Amended Master Complaint. Before the Court this day is a demurrer by all defendants to all eight (8) causes of action set forth in the operative pleading on the ground that none of them include facts sufficient to constitute a cause of action (CCP §430.10(e)). This type of demurrer only succeeds if there is no cognizable theory for relief of any kind, regardless of the labels and theo...

Excerpt: ...tration under CCP §1281 et seq, the moving party has the burden to demonstrate (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Thereafter, the burden shifts to the opposing party to show (a) the right to compel arbitration has been waived, (b) grounds exist for rescission of the agreement, or (c) some overriding California policy justifyi...

Excerpt: ...eclaration is insufficient to authenticate the subject agreement. In addition to the deficiencies noted above, the Court finds that an order compelling arbitration in this instance would create the possibility of conflicting rulings on common factual and/or legal issues involved in Plaintiffs' action against the other defendants, as the allegedly arbitrable claim arises out of the same transaction(s) as the non‐arbitrable claims. Therefore, ass...

Excerpt: ...nt may at any time apply to the court for an order requiring the plaintiff to furnish an undertaking to cover a future award of litigation costs. See Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428; Yao v. Superior Court (2002) 104 Cal.App.4th 327, 329. The motion must be supported with evidence demonstrating “a reasonable possibility” that the moving defendant will prevail, as well as a good faith estimate of the costs/fees previously i...

Excerpt: ...0, 21, 23, and 26 are OVERRULED. Objections 7, 8, 9, 15, 16, 18, 19, 22, 24, 25, 27, 28, 29, 30, and 31 are SUSTAINED. Notably, Defendant's objections to the attempt to bootstrap this case and the Wright case are granted. The Court will not consider the Trial Brief in the Wright matter, as does not meet the requirements for a judicial admission. A statement made to gain an advantage in a prior case cannot be walked back later; here Defendant made...

Excerpt: ... to both. On or about 03/09/22, plaintiffs caused to be served upon Alliant Insurance Services a subpoena for the production of records containing insurance applications from, and communications with, defendants regarding any insurance coverage from 03/01/10 to the present. Although the subpoena called for the production to occur at 8:00 a.m. on 03/28/22, it included two different locations for where the records were to be produced (compare Box 1...

Excerpt: ...s to the Third Cause of Action for Harassment. The Court addresses the issues in numerical order. Issue #1 [First Cause of Action]: While discrimination claims are subject to a three‐step burden‐shifting paradigm, establishing a prima facie case is not particularly onerous. (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 354‐355.) Here, Plaintiff is Laotian/Mien/Asian, and therefore, within a protected class. He was treated differently f...

Excerpt: ...f all this, this Court concluded that a discovery referee for some aspect of this case is needed. This Court ordered both sides to submit the name of someone they would propose to serve as discovery referee. This Court selected defendant's proposal (Attorney Michael Kronlund), largely because he had a lower hourly rate (see Minute Order dtd 05/13/22). Before the Court this day is a motion by plaintiff to reconsider that order. Central to plaintif...

Excerpt: ...re and treatment provided to an individual with schizo‐ affective disorder, who is reportedly subject to an LPS conservatorship. The operative pleading is the original complaint filed 05/21/21, and consisting of the following seven causes of action: unfair practices; breach of the implied covenant of good faith and fair dealing; Unruh; negligence; FEHA discrimination; defamation; and privacy violations. The pleading was filed ostensibly by Alla...