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...

Excerpt: ...ust 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. ...

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...

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: ...mary Judgment against Plaintiff J Marchini & Son Inc, or, Alternatively, Motion for Summary Adjudication; d) Defendant Duarte Nursery Inc's Motion for Summary Judgment against Plaintiffs Nichols Farms Inc; Charles and Susie Nichols dba Sierra View Farms; Carolyn Nichols; Eileen Nichols Christian; Charles Nichols, and Susie Nichols, or Alternatively, Motion for Summary Adjudication; e) Defendant Duarte Nursery Inc's Motion for Summary Judgment, or...

Excerpt: ...equired element of notice. (Gov. Code §835(b).) The Court notes that Plaintiff argues constructive notice on the basis of evidence that the City performed routine maintenance procedures at the park which, when carried out with reasonable diligence, allegedly should have uncovered the defect. (See Plaintiff's evidence in opposition to UMF 3.) However, Plaintiff has failed to produce any evidence on the foundational issue of whether the defect exi...

Excerpt: ...efendant WUSD has provided adequate responses and proper objections to these discovery requests. Plaintiff's motion to compel further responses to special interrogatories, set two, from defendant WUSD is GRANTED IN PART. (Code Civ. Proc., § 2030.300.) While defendant WUSD's vague and overbroad objections are proper, a responding party must answer an interrogatory to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).) Accordingly, def...

Excerpt: ...ed motion for final approval 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 California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settlement and the associated fees and costs are approved as set...

Excerpt: ...ated that his asserted interest is sufficiently “immediate, pecuniary, and substantial” to afford him the ability to challenge the judgment in the context of this PAGA action. (See, e.g. County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736.) (b) The Court finds that the non-party movant lacks standing to bring the instant motion. The moving party has not demonstrated authority for a non-party employee to challenge the judgment herein. Moreo...

Excerpt: .... With regard to that issue, the Court finds that Cross-Complainant is reasonably likely to prevail on her claim of trespass on the basis that Cross-Defendants' conduct exceeded the scope of consent reflected in the subject agreement when they undertook to authorize replacement of the subject irrigation valve affecting the flow of water to Cross-Complainant's property, resulting in the risk of irreparable injury in that regard. (Code Civ. Proc. �...

Excerpt: ...otion, particularly in view of the apparent existence of controverting evidence in the depositions of Mr. Hensel and Mr. Pilgrim, and Defendant's failure to identify and address the same. Had Defendant properly identified such items of evidence, Defendant would not have been able to carry its burden herein. In any case, assuming arguendo that Defendant has met its initial burden, the Court finds that Plaintiffs have satisfied their obligation to ...

Excerpt: ...fendant has established that there are no issues of material fact and no evidence to support Plaintiffs' causes of action herein. In the absence of any opposition, Plaintiffs have failed to offer evidence which raises a triable issue of material fact as to any theory of liability as against the moving defendant. Therefore, the motion for summary judgment is granted and judgment shall be entered in favor of Defendant Doctors Medical Center of Mode...

Excerpt: ... Plaintiff's failure to shut off power to the school building undergoing the power surges when other power strips in the building began to fail. The failure to the power strip was a secondary cause because it merely permitted the loss. Plaintiff argues, to the contrary, that the surge protector was itself the direct cause of the fire, so that the doctrine does not apply at all. The Court is persuaded that the failure of the surge protector was a ...

Excerpt: ...ded in preparing a reply brief and in arguing this motion, as the motion is unopposed. The hourly rate is appropriate for Stanislaus County, and the time expended is also appropriate. Defendant Bouma's proposed order is proper in form. This Court will sign the order once it is amended to reflect the dollar figure actually awarded. ...

Excerpt: ...�nancial, operational, contractual, and other commercially sensitive information” of the parties, health plans, and physicians. Their requests are very broad. A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. CRC 2.550(b)(1). For a court to or...

Excerpt: ...ature of the argument between the parties herein, i.e. the Plaintiffs' entitlement to obtain information and documentary evidence which may assist them to identify additional class members herein and the notice requirements, if any, which apply to protect such third parties' privacy interests at this pre-certification stage of the litigation. With regard to this issue, the Court finds that the holding in Belaire-West Landscape, Inc. v. Superior C...

Excerpt: ...��Whether a motion is actually a motion for reconsideration of a prior ruling is determined by the relief sought and not by the label attached to it.” Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577. Here, the relief Crabtree Schmidt seeks in the motion is, basically, an order “reversing” the Court's orders on Gabriel Ashlock's ex parte requests for relief as applied to Crabtree Schmidt. Crabtree Schmidt doesn't believe that th...

Excerpt: ...iff's social security number in order to fulfill its tax-reporting obligations, but that is dependent upon Plaintiff achieving any recovery in this case. The information requested in Special Interrogatory No. 1 can be provided should it become necessary at some point in the future. There is no time at which answers to Special Interrogatories 2 through 6 are necessary to Defendants' tax-reporting obligations. Special Interrogatory No. 7, the only ...

Excerpt: ... was paid for, and granted a security interest in the equipment to Plaintiff “to secure payment of the purchase price and performance of all obligations under this Agreement.” The agreement further required Defendant to return the equipment. Section 697.530 does not apply under these circumstances. Defendant fails to identify the motion as to which it claims this is an untimely motion for reconsideration, and this Court has not been able to i...

Excerpt: ...ts for Production of Documents, Set No. Two, and request for Sanctions of $2,165 against Plaintiff Melodie Everson and her counsel of Record, Crabtree Schmidt – GRANTED. a) The moving party has demonstrated entitlement to an order compelling further responses to the subject interrogatories. The responses provided do not comply with the requirements of Code Civ. Proc. §2030.220 and 2031.320. Defendant shall provide further verified responses wi...

Excerpt: ...ify Respondent's appraiser. With regard to Petitioner's request that the Court appoint a neutral umpire pursuant to Ins. Code §2071, the Court finds that the parties' disagreement over Mr. Andrews' qualifications to serve as Respondent's party appraiser appears to have impeded the appraisers' abilities to meaningfully confer as to possible agreement on this issue. In addition, the petition does not conform to the requirements of CCP §1286.1, in...

Excerpt: ...laintiff to provide answers, without objection, to the subject discovery within 30 days. With regard to Requests for Admissions, Set One, the Court finds that Plaintiff has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2033.280(a). Accordingly, the Court has no discretion but to grant Petitioner's request. (Code Civ. Proc. §2033.280(c); St. Mary's v. Superior Court (Schellenberg) (2...

Excerpt: ...ng papers do not demonstrate sufficient meet and confer efforts with regard to these issues. Therefore, the matter is continued and counsel are instructed to meet and confer in person or by telephone, with regard to potential compromise on the disputed issues herein, including but not limited to the date and location for the requested deposition to proceed. If the dispute cannot be resolved by continued good faith efforts, the parties shall file ...

Excerpt: ...t it was the failure to provide billings that constituted the malpractice complained of. In fact, Cross-Complainants argue that the failure to provide billings covered up malpractice. They have properly alleged that they could not have discovered malpractice until they received the bill sometime after this matter was filed. As to the Ninth Cause of Action, for Fraud – Concealment, the Court SUSTAINS the Demurrer, with leave to amend. Cross-Comp...

Excerpt: ...just. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.) Hours Reasonably Worked – Regarding the lodestar fees calculation, the Court finds, on the basis of Mr. Watts' declaration, that the hours claimed through September 2019 were reasonably incurred and substantially contributed to the ultimate successful result on the contract claims. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Board of Trustees of Calif. State University (2005) 1...

Excerpt: ..., California courts have recognized that "where an amendment does not add but simply corrects a misnomer by which an 'old' defendant was sued, case law recognizes an exception to the general rule of “no relation back." (Hawkins v. Pacific Coast Bldg. Products Inc. (2004) 124 Cal.App.4th 1497.) Plaintiffs seek to correct a misnomer by which Defendant BBVA USA aka Compass Bank was named in the original complaint. Therefore, a First Amended Compla...

Excerpt: ...red in proving this matter. However, the fees appear reasonable in light of the services rendered before and at the time of trial, where a relatively simple dispute became costly and complex. Therefore, Plaintiff is awarded, and Defendant is ordered to pay, $188,286 in attorney's fees. ...

Excerpt: ...t forth in Request for Admissions, Set Two. Defendant's responses to the remaining requests at issue in this motion (Items 9, 10, 12, 13, and 14) do not support the requested award, as such responses did not unequivocally refuse to admit the requested information but consisted of various objections and incomplete information, the sufficiency of which were never challenged by way of the procedure set forth in Code Civ. Proc. §2033.290 et seq. (Se...

Excerpt: ...e to state the subject causes of action (Code Civ. Proc. §430.10(e).) “Oppression” and “Malice” are not recognized as independent causes of action under California law. As to the Fifth Cause of Action for Malicious Prosecution, the demurrer is sustained without leave to amend for failure to state the subject cause of action. (Code Civ. Proc. §430.10(e).) The legal elements of this claim cannot be sufficiently pleaded while the subject l...

Excerpt: ...the case law interpreting the reference to “additional damage” in that section. (See, e.g. McNeill v. Bredberg (1961) 192 Cal.App.2d 458.) Plaintiffs are granted leave to amend in order to attempt to allege facts that might bring these items of damage within the scope of recoverability under the law. Plaintiff shall file their First Amended Complaint within 20 days. ...

Excerpt: ...and unopposed. With regard to Form Interrogatories, Set 2, and Request for Production, Set 2, it appears that Defendant has entirely failed to respond and all objections have been waived. (Code Civ. Proc. §§2030.290(a), 2031.300(a).) Therefore, Plaintiffs are entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. Further, the Court finds that Plaintiffs are entitled to an award ...

Excerpt: ...der vacating the trial date, none of which can be attributed to the fault of any party herein, the Court finds that the interests of justice and a balancing of the equities dictate that any pretrial deadlines that had not expired prior to the issuance of the Court's order vacating the trial date should likewise be vacated and remain open, to be calculated from the new trial date once it has been assigned. The above ruling shall not apply to the d...

Excerpt: ...e product of dividing the net settlement by the number of class members. The Court also would like an explanation of how the settlement administrator will hold and/or invest the settlement funds as they are paid in over a 21 month period. Finally, the Court questions whether it is appropriate to give final approval to the settlement before the settlement proceeds are distributed to the class members. Counsel should be prepared to discuss these is...

Excerpt: ...sclose, both technical matters that can be easily corrected. Otherwise, the 2 nd, 3 rd, 4 th and 5 th causes of action are pleaded in sufficient detail. The Demurrer as to the 2 nd, 3 rd, 4 th and 5 th causes of action is therefore sustained. The Demurrer as to the 10 th and 11 th causes of actions is overruled. Plaintiff is not required to plead specifically which business it lost on what contracts. The Demurrer as to the 13 th and 14 th causes ...

Excerpt: ...endent abuse, not as stand-alone causes of action. None of the case law cited by Defendant holds that the types of allegations complained of should be stricken from a complaint like this one. Defendant further argues that Plaintiff has admitted that Defendant's staff was appropriately trained, so that allegations charging otherwise should be stricken. In fact, however, a review of the Complaint indicates that Plaintiff alleges that Defendant knew...

Excerpt: ...position that some of the interrogatory responses were not accurate. Plaintiffs were dilatory in bringing the motion by waiting until ten days before the discovery cut off to depose defendant's PMQ, and then delaying to file its motion, such that it would have been heard less than 30 days before trial. However, the new trial date eliminates any concern of delay of that trial due to the granting of this motion. Moreover, defendant is not blameless...

Excerpt: ... Court finds that while isolated portions of the pleading may be ambiguous, the allegations are sufficient to apprise the Cross-Defendants of the conduct complained of. As to the asserted ground of misjoinder of parties (Code Civ. Proc. §430.10(d)), the Court finds that the factual allegations concerning Ms. Boer appear to be related to her position as an officer of the corporation, which is a named Cross-Defendant in the action. (b)The Court fi...

Excerpt: ...emonstrating a material factual dispute. Plaintiff has failed to meet her burden in this regard, as there is no evidence of a contract supporting the subject cause of action as a matter of law. Therefore, the Motion is GRANTED as to the Second Cause of Action. As to the Third Cause of Action for Negligent Infliction of Emotional Distress, the Court finds that Defendants, as the moving parties, have met their initial burden of demonstrating prima ...

Excerpt: ... collision, whether the physical characteristics of the intersection exposed pedestrians to increased danger from third party negligence, whether the driver would have responded to any additional signage or warning devices such as flashing beacons, rumble strips, etc., and whether a driver striking a pedestrian at the intersection, be it due to sun glare, shadows, lack of warning signs and devices, or any combination of these and other factors di...

Excerpt: ...r and employee' or ‘independent contractor' for statutory purposes, including, but not limited to, withholding taxes on wages and for purposes of unemployment compensation, shall be governed by Section 650 and Sections 13000 to 13054, inclusive, of the Unemployment Insurance Code.” Section 650 of the Unemployment Insurance Code sets forth that no employment relationship exists if three criteria are met, all of which are met here. The Court re...

Excerpt: ...ourt made it plain in its February 27, 2020 Order that the prior iteration of this motion was denied without prejudice, and Defendant was granted a final opportunity to present the motion properly, which he has now done. Defendant has asserted that he was surprised by the default judgment against him in light of his discussions with Plaintiff's attorney, and the Court finds this contention sufficiently credible to warrant granting the motion. 2. ...

Excerpt: ... of “mistake, inadvertence, surprise, or excusable neglect” to warrant vacating the default judgment under Code of Civil Procedure section 473, subdivision (a). b) Defendants' Demurrer and c) Defendants' Motion to Strike – The Demurrer is SUSTAINED with leave to amend and the Motion to Strike is GRANTED. Plaintiff has not alleged any facts tending to prove that the moving Defendants acted in concert or conspiracy with the defendants who wer...

Excerpt: ... Complaint by producing evidence of each element of the cause of action asserted therein. (Code Civ. Proc. §437c(p)(1).) The burden then shifts to Defendant to demonstrate that a triable issue exists as to one or more material facts as to the cause of action or a defense thereto. Defendant has failed to carry her burden in this regard and has produced no controverting evidence. Moreover, Defendant's opposition is deficient in that she entirely f...

Excerpt: ...27, 435.) Here, Petitioners have demonstrated that the fact that they were 25 days late in filing their claim was the result of excusable neglect or mistake. Specifically, Petitioners' counsel stated in a Declaration that he originally met with Petitioners in late August, 2019. The Petitioners at that time said that they needed to think about how to proceed. Thereafter, counsel failed to ensure that Petitioners had retained other counsel or decid...

Excerpt: ...ucing evidence demonstrating the existence of material factual disputes, specifically with regard to whether harassing conduct directed against him by Defendant based on his sex continued into the early months of 2014, which would render the December 2014 administrative complaint and, in turn, the Complaint herein, timely. (See, at a minimum, Plaintiff's Additional Material Facts 7, 8, 9, 12, 14, 15 and supporting evidence.) Therefore, the motion...

Excerpt: ...on to Compel Arbitration and Stay Action is GRANTED. Under the Federal Arbitration Act, “a heavy presumption weighs the scales in favor of arbitrability.” (O'Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 490-91.) The FAA preempts and invalidates all state laws and judicial decisions that disfavor arbitration, that single out arbitration provisions for higher scrutiny, or that are inconsistent with the purpose of the FAA and the U.S. Suprem...

Excerpt: ...f the Court. (Mansour v. Superior Court (1995) 38 Cal.App.4 th 1750, 1756.) While it would have been better practice for the City to have made it explicit that it was appearing specially, the Court cannot infer from the City's actions that it intended a general appearance. The City's assertion that Plaintiffs proffered their claim late, and that the City rejected their application for leave to present a late claim, is not well taken. First, Secti...

Excerpt: ... off calendar, and the parties will be required to re-notice those motions when the stay expires. The Court further GRANTS IN PART AND DENIES IN PART Plaintiff's request for a determination regarding the tolling of the 5 year statute contained in Code of Civil Procedure section 583.310. The Court finds that Code of Civil Procedure section 583.340 requires that the five-year time period be computed excluding any time during which the litigation wa...

Excerpt: ...ficant interest in proceeding expeditiously and the potential for prejudice exists due to the delay that would be imposed by a further two-year stay of the entire civil proceeding. Therefore, the Court orders that all discovery proceedings directed to Defendant shall be stayed until such time as the criminal action has been dismissed with prejudice. Discovery directed to the corporation and/or non-party witnesses may proceed, subject to the Court...

Excerpt: ...) 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 Court is inclined to find that Defendant possesses no interest in the property; therefore, no undertaking is required of Plaintiff herein. (Code Civ. Proc. §515.010(b).) However, Defendants shall be required to file an undertaking in the amount of $188,668.74 as a redelivery bond. (Code Civ. Proc. §515.020.)...

Excerpt: ...sistent with the State's goal of benefitting the public through enforcement of its labor laws. Specifically, the motion lacks a discussion of the reasonableness of the proposed settlement as compared to the maximum potential liability on the part of Defendant herein. In fact, it appears that the motion fails to identify the maximum penalties for the various Labor Code violations alleged in the First Amended Complaint, each of which may arguably g...

Excerpt: ...President during the relevant time. However, Plaintiff has failed to make any case that Dr. Herr bears such responsibility. There is no genuine issue of material fact regarding Dr. Herr's lack of liability for Plaintiff's claims, and summary judgment is therefore appropriate. Defendant Natalyn Bergman, on the other hand, testified via declaration that she saw Defendant only once to discuss one of his medications, and that this was her “one and ...

Excerpt: ...of Defendant's request, he has failed to demonstrate why such materials could not have been submitted previously with the exercise of reasonable diligence. Therefore, the renewed motion is denied. Lastly, the Court declines to exercise its equitable powers to issue a different ruling on the underlying motion, as it finds that the materials submitted herein are not persuasive in establishing extrinsic fraud or mistake in connection with the proof ...

Excerpt: ...orp. (2004) 34 Cal.4 th 979. The Robinson Helicopter courtdid not rule that a fraud cause of action is barred against the manufacturer of a product that causes economic injury, and such is not California law. (See, e.g., Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4 th 70, 78 (“when one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort”).) Plaintiff is also correct in...

Excerpt: ... to Code Civ. Proc. §364. Therefore, the demurrer to the First Cause of Action is OVERRULED. With regard to the Second Cause of Action, the Court finds it to be uncertain. (Code Civ. Proc. §430.10(f). To the extent that the Second Cause of Action restates Plaintiff Shabo's claim for wrongful death as a claim for “Loss of Consortium,” it involves the same primary right as that asserted in connection with the First Cause of Action and is, the...

Excerpt: ...e anything to do with Wiley Chandler for fear that he will sue. Second, Foster complains of invasions of its own privacy and that of its directors and stockholders. Third, Foster questions the relevance of the documents sought. Finally, Foster argues that the subpoena is governed by Evidence Code section 1560, and thus that sanctions are not available to CEMG. First, Mr. Chandler waived any objection he might have to Foster's production of docume...

Excerpt: ... arbitrators if the method selected by the parties fails (Code Civ. Proc., § 1281.6); grant a provisional remedy, “but only upon the ground that the award to which an applicant may be entitled may be rendered ineffectual without provisional relief” (Code Civ. Proc., § 1281.8, subd. (b)); and confirm, correct, or vacate the arbitration award (Code Civ. Proc., § 1285). Absent an agreement to withdraw the controversy from arbitration, however...

Excerpt: ...be time-barred. However, the Court must grant leave to amend if the plaintiff demonstrates a reasonable possibility that the defect might be cured. (Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4 th 797, 810.) Here, Plaintiff's opposition has demonstrated a reasonable possibility that he may be able to state facts justifying the application of the tolling provisions of Code Civ. Proc. §352.1 and/or the delayed discovery rule to his claims in this m...

Excerpt: ... Civ. Proc. §437c(p)(2).) The Court notes that Plaintiff's response lacks admissible evidence, as it consists primarily of what purports to be testimony that is not in the form of a declaration. (Code Civ. Proc. §2015.5.) Moreover, the Court notes that Plaintiff failed to submit a response to Defendant's Separate Statement of Undisputed Facts, as is required by Code Civ. Proc. §437c and Cal. Rules of Ct., rule 3.1350. While this failure alone ...

Excerpt: ...ctors that this Court take jurisdiction of the winding up of corporate affairs. Therefore, pursuant to section 1904 of the Corporations Code, this Court hereby takes jurisdiction over the voluntary winding up of the corporation's affairs. Pursuant to Code of Civil Procedure section 565, this Court will appoint a receiver to manage and complete the winding up of the corporation's affairs. By no later than March 3, 2020, the parties shall submit to...

Excerpt: ... of the stated causes of action. The Code dictates that a motion for summary adjudication may only be granted if the issue in dispute completely disposes of an entire cause of action, affirmative defense, a claim for damages or an issue of duty. As the Court reads the motion and separate statement, Defendants set forth multiple separate issues related to the element of duty as well as additional separate issues related to the elements of breach a...

Excerpt: ...causes of action for negligence, fraud, breach of the implied covenant of good faith and fair dealing, breach of the Business and Professions Code and to quiet title, and she is entitled to attempt to do so. In addition, Plaintiff's third cause of action, for an accounting, fails to set forth any relationship between her and Defendants that would give rise to an entitlement to that relief, but, again, she may be able to do so. Plaintiff is theref...

Excerpt: ...only remaining cause of action at issue. Specifically, Plaintiff admits that Defendant granted all of her requests for accommodation during her employment. (UMF11-13; Plaintiff's Additional UMF 47, 54.) The additional facts argued by Plaintiff with regard to the allegedly pretextual reasons for her discharge are irrelevant to a claim under Gov. Code §12940(m). (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4 th 245.) Plaintiff's Objections to Def...

Excerpt: ...te causes of action for negligence, fraud, breach of the implied covenant of good faith and fair dealing, breach of the Business and Professions Code and to quiet title, and she is entitled to attempt to do so. In addition, Plaintiff's third cause of action, for an accounting, fails to set forth any relationship between her and Defendants that would give rise to an entitlement to that relief, but, again, she may be able to do so. Plaintiff is the...

Excerpt: ...ting preliminary approval. Having considered the unopposed motion for final approval 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 California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settleme...

Excerpt: ...e that claim due to its failure to seek injunctive or other extraordinary relief as required by Gov't. Code §3309.5(d)(1). Moreover, it is Plaintiff's burden to establish how the pleading may be properly amended, and the Court finds that Plaintiff has failed to meet that burden in this context. Specifically, Plaintiff fails to provide any authority establishing that he is entitled to assert a claim for extraordinary relief, i.e. by way of petiti...

Excerpt: ...y imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Landau v Superior Court (1998) 81 Cal.App.4 th 191, 217.) Furthermore, “In reviewing the exercise of this discretion we bear in mind the principle ‘[c]ourts should let administrative boards and officers work out their problems with as little judicial interferen...

Excerpt: ...sponse did not comply with Code Civ. Proc. §2031.240 et seq. Moreover, the items appear to be reasonably related to the subject matter of the suit herein and the proper subject of discovery. Finally, Plaintiff has the burden of demonstrating why the existing protective order is inadequate to address its expressed privacy and confidentiality concerns and has failed to make any showing in that regard. Therefore, Plaintiff shall provide a further v...

Excerpt: ...ent, as detailed in the Demurrer. Defendant also properly points out that the Complaint is uncertain and ambiguous, in that Plaintiffs' Complaint purports to allege causes of action under the FEHA, but the Right to Sue Notice they attached to their Complaint came from the Equal Employment Opportunity Commission. This suggests that Plaintiffs failed to exhaust their administrative remedies. The Self-Help Center offers free help to people who are r...

Excerpt: ...as was the cause of action) was “incidental” to the primary claims set forth in their petition. See Regalado v. Regalado (1961) 198 Cal.App.2d 549. The primary purpose of Petitioners' claims was not partition – thus there is no basis for apportionment of their attorney's fees under Code of Civil Procedure Section 874.010 et seq. Additionally, Petitioners seek to impose costs of proof under Code of Civil Procedure section 2033.420 on the bas...

Excerpt: ...ller for the relevant time period. Based on the supplemental declaration of counsel submitted in connection with this matter, the Court now makes the following ruling with regard to the fees and costs sought herein: As previously noted, Defendant does not dispute the moving party's entitlement to post-stipulation fees under the above-referenced statutes, but contests the reasonableness of the hours claimed. The successful party is normally entitl...

Excerpt: ...ails to allege that Defendants knew or should have known that the driver to whom the vehicle was entrusted was incompetent to drive. (Jen-Weld, Inc. v. Superior Court (2005) 131 Cal.App.4 th 853, 864.) Moreover, the Complaint fails to plead any acts or omissions which Plaintiff claims to have constituted Defendants' alleged negligence. (Berkley v. Dowds (2007) 152 Cal.App.4 th 518, 527; Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101.) ...

Excerpt: ...ion, to the subject discovery within 30 days of service of notice of entry of the order. Plaintiff's request for monetary sanctions is denied. A pro per litigant is not entitled to recover reasonable attorney's fees in connection with a motion to compel discovery. (Kravitz v. Superior Court (Milner) (2001) 91 Cal.App.4 th 1015.) While expenses actually incurred in connection with the failure to respond to discovery may be recoverable, Plaintiff h...

Excerpt: ...in this motion with additional time and effort expended in good faith. The Court's assessment in this regard is based on the fact that both parties appear to demonstrate a willingness to compromise to some degree in order to reach an acceptable resolution of the issues presented. Therefore, the hearing is continued for this purpose and counsel are instructed to continue to meet and confer in good faith. If such efforts prove unsuccessful at resol...

Excerpt: ...s not strictly limited to claims brought under the California Consumers Legal Remedies Act, as Plaintiff argues, it is not intended to apply to the type of claim alleged here. Therefore, the demurrer to this portion of Plaintiffs' First Amended Complaint is sustained without leave to amend. Accordingly, Defendant's Motion to Strike Portion of Plaintiffs' First Amended Complaint in GRANTED IN PART WITHOUT LEAVE TO AMEND AND DENIED IN PART. Those p...

Excerpt: ...cted on the purported “claim form” published by the District. Moreover, absent evidence of delivery or mailing to the appropriate recipient, it is Plaintiff's burden to establish actual receipt and no such evidence has been presented herein. Assuming arguendo that receipt by the appropriate recipient can be established, the Court nevertheless finds that the subject correspondence in June 2018 failed to constitute a claim because it omitted th...

Excerpt: ...majority of the hours claimed were reasonably incurred and substantially contributed to the ultimate successful result. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Board of Trustees of Calif. State University (2005) 132 Cal.App.4th 359, 394.) This includes time spent to prepare this motion and to oppose Defendants' Motion to Tax Costs. In its determination of reasonable hourly rates, the Court has considered the skill and experien...

Excerpt: ... determined to rule on the merits of the demurrer, as follows: Based upon review of the moving and supporting papers, the Court SUSTAINS Defendant 7/11, Inc.'s Demurrer to the First Cause of Action in its entirety. The Complaint admits that Plaintiff was injured during the course of his employment with 7/11, Inc.; therefore, Plaintiff's exclusive remedy lies in the Worker's Compensation system. As Plaintiff has not opposed the demurrer and it doe...

Excerpt: ... testimony and has not otherwise been authenticated, making it inadmissible hearsay. Despite the above-referenced deficiencies in the moving and supporting evidence, the Court finds that Plaintiffs' counsel's declaration raises an issue with regard to his client's current ability to submit to a deposition based on events which apparently transpired after the instant motion was filed. For that reason, the hearing is continued and counsel are instr...

Excerpt: ...endant is entitled to an order compelling Plaintiff to provide answers, without objection, to the subject discovery. Due to the impending trial date, Plaintiff shall serve such answers within 10 days of the date of the hearing. Further, the Court finds that Defendant is entitled to an award of monetary sanctions. (Code Civ. Proc. §§2030.290(c), 2031.300(c), 2023.010, 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Plaintiff is ordered to pay $...

Excerpt: ...While a trial plan might be useful in determining whether a class should be certified in the first instance, as discussed in Duran, in this case the class was certified by Order dated June 25, 2019. Defendant's motion is thus an attempt to challenge the Court's decision to certify the class when the time to bring a motion for reconsideration has passed and there is no new evidence or new law to serve as a basis for such a motion. That said, a tri...

Excerpt: ... a judgment on equitable grounds due to lack of due process or extrinsic fraud or mistake also does not apply here. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-473.) ...

Excerpt: ...s. Nor is such a claim preempted by ERISA; the new cause of action is not entirely dependent upon Explanations of Benefits, but refers to other behaviors as well. Under these circumstances, Morris B. Silver M.D. Inc. v. International Longshore & Warehouse (2016) 2 Cal.App.5th 793, does not require a finding of federal preemption. b) Just as it was appropriate to consolidate the first two cases brought by Plaintiff against Defendant based upon the...

Excerpt: ...rtis item k, $435 for Schofield item c, $715 of the Pimentel cost (item 8, minus the statutory witness fee), and item 9 in its entirety ($2,373.85). The remainder of the motion to tax is DENIED. Petitioner to prepare proposed order hereon. b) GRANTED in part, DENIED in part Based on the breadth of the subpoenas, and the failure to specify records sought, the motion to quash all four subpoenas is GRANTED. Petitioner, as the prevailing party hereon...

Excerpt: ... requires individual class members to submit a claim form in order to obtain settlement payments, but the moving papers contain no explanation of any purpose served by this requirement other than to potentially reduce the actual amount paid by Defendant in settlement of the subject claims. Moreover, the Court notes that the amount of attorney's fees to be recovered by Class Counsel appear to be calculated based on the stated maximum settlement pa...

Excerpt: ...n unjustified invasion of the right to privacy and the physician-patient privilege in this context. (Code Civ. Proc. §1987.1; 2017.020(a).) The Court declines to award sanctions and notes that the moving parties failed to submit a declaration regarding meet-and-confer efforts. (Code Civ. Proc. §§2017.020(a); 2016.040.) ...

Excerpt: ...k of timely service may ask the court to equitably estop the defendant from asserting the three-year service window. (Code Civ. Proc, § 583.140; see also Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397 (Sanchez).) However, a plaintiff arguing estoppel has to show that some “act of [defendant's] prevented timely service.” (Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 486 (Lesko).) Here, there is no such showing. Although ther...

Excerpt: ...are listed in Code of Civil Procedure section 430.10. Because section 430.10 does not authorize demurrer on the ground that a cause of action is “duplicative,” the court is disinclined to consider the demurrer to the first three causes of action. The court notes, however, that the opinion in Barris v. County of Los Angeles (1999) 20 Ca1.4th 101 acknowledged the existence of a cause of action for violating 42 U.S.C. section 1395dd. To the exte...

Excerpt: ...irectly related to the merits of the causes of action alleged in the Third Amended Complaint, such that the provisions of Code Civ. Proc. §597 do not apply in this context. In addition, the Court finds that the overall “gist” of the action is legal in nature; to the extent that the 8 th Cause of Action seeks an equitable remedy, the allegations therein are so intertwined with Plaintiff's legal claims as to make a separate trial impractical i...

Excerpt: ...e court also takes judicial notice of plaintiff's answer in the UD case. (Ibid.) The court's review of these documents indicate that some of the causes of action in the FAC are barred by the UD judgment. (See, e.g., Pacific Mutual Life Ins. Company of California v. McConnell (1955) 44 Cal.2d 715, 724–725 [“While different causes of action were involved in the present proceeding and [the previous related] one, the parties were the same, and it...