Excerpt: ...ntiff Karen Stephanie Jones's Motion to Compel Defendant Valley First Credit Union to Provide Further Responses to Plaintiff's Request for Production of Documents (Set One) and Request for Monetary Sanctions – a) GRANTED, sanctions of $960 imposed against defense counsel. The kind of pre-certification discovery Plaintiff seeks is routinely allowed in California. (See, e,g., Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App. 4th 958; Puer...

Excerpt: ...on which allegedly exacerbated Plaintiff's pain and suffering due to her inability to take certain medications prescribed for the injuries at issue herein. Therefore, the subject subpoenas shall be modified to seek records pertaining to the above-described conditions/injuries for the time period from 11-8-2008 to the present. (See, e.g. Britt v. Superior Court (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844.) The Court further finds that Plai...

Excerpt: ... in Department 22. As this Court's previous rulings have indicated, the Court is inclined to order at least some amount of production of documents in response to the two motions to compel by Cross-Defendant Doctors Medical Center (DMC). However, in light of the opposition by the County of Stanislaus to the motions that request that it respond to DMC's requests for production of documents, the Court has developed concerns that a conflict of intere...

Excerpt: ...e scope of employment is ordinarily a question of fact, unless the undisputed facts do not support such an inference. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213.) The fact that Defendant Miller was admittedly off-duty at the time of the subject incident does not conclusively foreclose liability on the part of Defendant City based on the employment relationship. (Inouye v. County of Los Angeles (1994) 30 Cal.App.4 th 278.) The Court...

Excerpt: ...heir authority to speak, to whom they spoke, what was said and when. (See, e.g. Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157.) Here, the Complaint fails to allege facts with the degree if specificity required in this context. In addition, the Court finds that the Demurrer represents an inappropriate procedure by which to challenge the claim for punitive damages; Defendant's arguments in that regard are evaluated in conn...

Excerpt: .... (Code Civ. Proc., § 2024.020, subds. (a), (b).) Objector has failed to demonstrate that the court intended to reopen discovery when it continued trial on May 10, 2019. The declaration in support of that motion and the motion itself do not mention a need for discovery beyond that which the court had already compelled, and the court granted all of the relief objector sought with respect to the trial date. In addition, the court denies objector's...

Excerpt: ...tion for Protective Order – DENIED. Defendant Amazon.com, Inc. moves to quash the deposition of the manager of its Tracy facility, and plaintiff moves to compel the same deposition. The court finds this deposition is relevant to plaintiff's claim for punitive damages, even though defendant now concedes liability on compensatory damages. Defendant has failed to support its claim that having the manager sit for deposition would be unduly burdenso...

Excerpt: ...ine whether Defendant is the prevailing party under the practical approach set forth in Castro v. Superior Court (2004) 116 Cal.App.4 th 1010, 1022-1023. Therefore, the Court has considered the moving and opposing arguments and evidence and finds that the moving party would have prevailed on the instant motion on the basis that the Complaint does not set forth a real property claim sufficient to support the recording of a lis pendens under Code C...

Excerpt: ...s that Defendant's conduct in failing to comply with the Court's order compelling her responses to outstanding discovery and imposing monetary sanctions against her constitutes misuse of the discovery process. (Code Civ. Proc. §2023.010(d), (g).) The Court further finds that the prior sanctions imposed by the Court in this action have not been effective in compelling Defendant to comply with her obligations under the Discovery Act. Therefore, th...

Excerpt: ...ition, he never explicitly testified that this alleged failure was the cause of plaintiffs' injuries. D&D's only other evidence on this point is a set of discovery responses by the Huff defendants, but D&D may not use discovery responses by the Huff defendants against plaintiffs on this motion. (Code Civ. Proc., § 2030.410.) The court also questions the usefulness of discovery responses that are made in relevant part on information and belief. (...

Excerpt: ...whether Defendant failed to reasonably accommodate Plaintiff's disability during the relevant time period preceding Plaintiff's termination, i.e. August 22, 2017 – August 30, 2017. Specifically, Plaintiff presents conflicting evidence with regard to whether Defendant bears at least some of the responsibility for the breakdown in the interactive process involved in Defendant's evaluation of Plaintiff's accommodation request during the relevant t...

Excerpt: ...f specific types of necessary medical care “many times each day for the entirety of decedent's care at defendants' facilities” during specified dates (FAC, ¶ 12), is adequately specific. Also, because it alleges staff failed to follow doctor's orders regarding skin breakdown despite knowledge of the harm posed to decedent, the first amended complaint pleads acts that could constitute actionable neglect of an elder. (Sababin v. Superior Court...

Excerpt: ...rcycle Club v. Western Title Guaranty Co. (1975) 47 Cal.App.3d 747, 754 [“ ‘Prescriptive rights are established only when the enjoyment thereof is adverse, continuous and under claim of legal right, and not by consent, permission or mere indulgence of the owner of the alleged servient estate.' ”]; O'Banion v. Borba (1948) 32 Cal.2d 145, 150 [“ ‘The question as to whether or not the use of a right of way has been adverse and under a clai...

Excerpt: ...nth, Ninth and Twelfth causes of action allege claims that are not available against a public entity as a matter of law. (Gov't. Code §815(a); Miklosky v. Regents of the Univ. of Calif. (2008) 44 Cal.4 th 876, 900-901; Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24.) The Sixth and Eighth causes of action appear to assert claims that are not properly pleaded under FEHA and are, in any case, duplicative of the First and Second Causes of action and, ...

Excerpt: ... qualify as managing agents. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.) Here, the SAC alleges plaintiffs complained about decedent's care to “individuals who are believed to be charge nurses and/or nurses who were charged with the responsibility for overseeing the care and treatment provided to decedent reviewing and evaluating patient care policies and procedures, planning for improvement of medical care in the facility, and assurin...

Excerpt: ...he moving defendant. (Code Civ. Proc. §430.10(e).) Specifically, the factual allegations appear to sound in professional negligence as opposed to conduct undertaken with the intent to cause Plaintiff severe emotional distress. Additionally, the pleading does not contain specific factual allegations with regard to the distress suffered. Plaintiff is granted leave to submit an amended pleading. b) The Court finds that the allegations of the First ...

Excerpt: ...to the well. “While the Court may interpret the terms of the parties' settlement agreement, ‘nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' ” (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374.) In this case, the language of the settlement agreement is at least somewhat ambiguous as to wh...

Excerpt: ...ts' Demurrer to the Second Amended Complaint, based on the pleadings, accompanying exhibits, and the briefs of both parties, the Court finds as follows: As to the Second Cause of Action for Fraud as to Cross-Defendant Nora Herrera, the allegations of the Second Amended Cross-Complaint does not plead facts with sufficient particularity as to the specific conduct by the named cross-defendant. Particularity means pleading facts which “show how, wh...

Excerpt: ...ot have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christopher...

Excerpt: ... not have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christoph...

Excerpt: ...ot support its motion with affirmative evidence negating an essential element of the plaintiff's case. Instead, the moving defendant may point to the absence of evidence to support the plaintiff's case. Defendant Open Door Services, Inc. has done so here, and thus, the burden shifted to the Plaintiff to present evidence demonstrating there is a triable issue of material fact. In opposition, and despite Defendant's objections to the evidence Plain...

Excerpt: ...tting the Truth of Unanswered Requests for Admission, Compelling Verified Further Responses to Written Discovery, and Request for Sanctions – a) GRANTED, in part; DENIED, in part With regard to Requests for Admissions, Set One, the Court finds that Plaintiffs have entirely failed to respond to the information requested in #1-4, despite acknowledging their “inadvertent” omission and promising to rectify the same in May 2019. Therefore, the C...

Excerpt: ...plaint on its face states facts sufficient to constitute a cause of action for general negligence in subrogation and that the Defendant's Answer on its face fails to state sufficient facts to constitute either any denial of Plaintiff's allegations or a meritorious affirmative defense. (Code Civ. Proc. § 438(c)(1)(A); Bezirdjian v. O'Reilly (2010) 183 Cal.App.4 th 316, 321 [matters subject to mandatory judicial notice deemed part of pleading and ...

Excerpt: ...is Plaintiff's employer) and Defendant HSI, who contends it is not. Defendant HSI seeks only to sequence the discovery in this matter to achieve this goal, not to impose a complete, permanent ban on any particular topic of discovery. Defendant HSI has demonstrated good cause for such an order. Notably, precluding production of an HSI “class list” at this time will further the interests of justice in that it will prevent an entirely unwarrante...

Excerpt: ...ain insufficient. (As just one example, Plaintiff's further response to Request for Production No. 3 is: “I do not have the documents.” This is not a code-complaint response.) Therefore, based on all of the pleadings and papers in the file, the Court GRANTS the Defendant's motion to compel further responses to Form Interrogatories, General, Set One Nos. 2.7, 4.1, 7.1 – 7.3, 8.3, 8.8 and 17.1, as well as Requests for Production of Documents,...

Excerpt: ...nfidence and when the client suspects and questions the good faith of his attorney the attorney should be permitted to withdraw from the case unless some very compelling reason exists for forcing him to continue with the ungrateful task.” (Heple v. Kluge (1951) 104 Cal.App.2d 461, 462.) While the court is sympathetic to plaintiff's predicament, his inability to find substitute counsel is not a “very compelling reason” to deny counsel permis...

Excerpt: ...is Plaintiff's employer) and Defendant HSI, who contends it is not. Defendant HSI seeks only to sequence the discovery in this matter to achieve this goal, not to impose a complete, permanent ban on any particular topic of discovery. Defendant HSI has demonstrated good cause for such an order. Notably, precluding production of an HSI “class list” at this time will further the interests of justice in that it will prevent an entirely unwarrante...

Excerpt: ..., Richards, Wilson & Co. v. Insurance Communicators Marketing Corp. (1993) 12 Cal.App.4 th 1249, 1263.) Had Plaintiff's dismissal of three of the four causes of action she originally alleged, including the cause of action on which the Court found a triable issue of material fact on the earlier MSJ/MSA, occurred before the issuing of a ruling on the earlier MSJ/MSA, the Court likely would have reached the merits of Defendant's arguments instead of...

Excerpt: ...ust that Dabblicious may have breached oral agreements, but also that it beached the contract itself by failing to conduct batch testing and allow remediation as allegedly required by industry standards. Dabblicious's attack on the third cause of action for fraud fails because, although JDI did not provide the name of the employee who met with its representative to discuss the processing agreement, it gave a month, year and location for the meeti...

Excerpt: ... Lind's motion described him, an industrial medicine doctor. However, Dr. Schwartz has presented evidence that she and Dr. Lind both practice “general medicine,” and as a physician she “has special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on” (Evid. Code, § 720, subd. (a)) that topic. (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970.) “Whether [her] knowledge in these areas w...

Excerpt: ...� GRANTED, in part; DENIED, in part, subject to evidentiary hearing. The Court find that Plaintiffs have demonstrated entitlement to entry of default against the unknown parties designated in the Complaint as “the testate and intestate successors of Barbara Plant, deceased, and all persons claiming by, through, or under such decedent; and all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property...

Excerpt: ...regard to Requests for Admissions, Set One, the Court finds that Plaintiffs' responses to #3 and 24 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to Form Interrogatories, Set One, the Court finds that Plaintiffs' responses to #8.7, 8.8, 9.1 and 9.2 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to #12.1-12.6, 13.1 and 13.2, the C...

Excerpt: ...tice of termination of the agreement. Moreover, even if the Court were to find Plaintiff's evidence sufficient on the above issues, Defendant has submitted controverting evidence and additional facts which demonstrate the existence of disputed material issues, including but not limited to the nature of the consideration for the parties' agreement (see Plaintiff's Fact 14 and Defendant's Additional Facts 20, 21, 25, and 26); the question of whethe...

Excerpt: ...tice of termination of the agreement. Moreover, even if the Court were to find Plaintiff's evidence sufficient on the above issues, Defendant has submitted controverting evidence and additional facts which demonstrate the existence of disputed material issues, including but not limited to the nature of the consideration for the parties' agreement (see Plaintiff's Fact 14 and Defendant's Additional Facts 20, 21, 25, and 26); the question of whethe...

Excerpt: ...regard to Requests for Admissions, Set One, the Court finds that Plaintiffs' responses to #3 and 24 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to Form Interrogatories, Set One, the Court finds that Plaintiffs' responses to #8.7, 8.8, 9.1 and 9.2 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to #12.1-12.6, 13.1 and 13.2, the C...

Excerpt: ...regard to Requests for Admissions, Set One, the Court finds that Plaintiffs' responses to #3 and 24 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to Form Interrogatories, Set One, the Court finds that Plaintiffs' responses to #8.7, 8.8, 9.1 and 9.2 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to #12.1-12.6, 13.1 and 13.2, the C...

Excerpt: ...tice of termination of the agreement. Moreover, even if the Court were to find Plaintiff's evidence sufficient on the above issues, Defendant has submitted controverting evidence and additional facts which demonstrate the existence of disputed material issues, including but not limited to the nature of the consideration for the parties' agreement (see Plaintiff's Fact 14 and Defendant's Additional Facts 20, 21, 25, and 26); the question of whethe...

Excerpt: ...LC has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Defendant shall provide answers, without objection, within 14 days of service of notice of entry of the order. Further, the Court finds that Plaintiff is entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the above-described discovery requests. (Code Civ. Proc. �...

Excerpt: ...th regard to the alleged existence of a dangerous condition at the subject intersection. Specifically, Plaintiffs have demonstrated material disputes of fact concerning, at a minimum, Defendant's Separate Statement of Undisputed Material Facts 3, 8, and 9. For example, the Court finds that factual issues exist as to whether the traffic controls in place at the intersection at the time of the accident were out of compliance with applicable regulat...

Excerpt: ...n this case. No declaration of any kind accompanies the motion, which does not contain the information that was supposed to be included in the declaration. The court is therefore missing facts essential to its determining the motion. In addition, the court agrees with the opposition that plaintiff has failed to articulate a viable theory of damages to support a cause of action for either trespass or conversion. ...

Excerpt: ...quately specific. Also, because it alleges staff failed to follow doctor's orders regarding skin breakdown despite knowledge of the harm posed to decedent, the first amended complaint pleads acts that could constitute actionable neglect of an elder. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) However, plaintiffs' references to decisions by unnamed “management” of defendant are insufficient to allege the type of ratification req...

Excerpt: ... including the declaration of Will Harris and the exhibits thereto, the Court finds that no material disputes of fact exist with regard to Plaintiff's entitlement to judgment on the sole cause of action for breach of contract herein. Specifically, the Court finds that there is no evidence of a valid amendment or extension of the fixed lease term as provided in the governing lease agreement. Therefore, Defendant is liable, as the guarantor on the ...

Excerpt: ...garding the lodestar fees calculation, the Court finds on the basis of Counsel's declarations and supporting exhibits, including time records, that the 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.) However, the Court declines to award th...

Excerpt: ...garding the lodestar fees calculation, the Court finds on the basis of Counsel's declarations and supporting exhibits, including time records, that the 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.) However, the Court declines to award th...

Excerpt: ... including the declaration of Will Harris and the exhibits thereto, the Court finds that no material disputes of fact exist with regard to Plaintiff's entitlement to judgment on the sole cause of action for breach of contract herein. Specifically, the Court finds that there is no evidence of a valid amendment or extension of the fixed lease term as provided in the governing lease agreement. Therefore, Defendant is liable, as the guarantor on the ...

Excerpt: ...in Civ. Code §47(b)(1) does not apply, as the subject “allegation or averment” concerning BEST was made by an officer of the court under penalty of perjury and appeared on its face to be relevant and material to the issues in the matter wherein it was made. Therefore, the First Amended Complaint fails to state facts sufficient to constitute the subject causes of action. (Code Civ. Proc. §430.10(e).) Due to the application of the privilege, ...

Excerpt: ..., and plaintiffs did not need to meet and confer about the responses before filing this motion. (Cf. Code Civ. Proc., § 2031.300[no meet and confer needed if no response] with Code Civ. Proc., § 2031.310, subd. (b)(2) [meet and confer declaration required for motion to compel further responses to discovery].) Because defendant is obligated to provide responses that are as “as complete and straightforward as the information reasonably availabl...

Excerpt: ...ounts, and/or reasonableness of such costs, thereby shifting the burden to Defendant to show that the items charged were for matters necessarily relevant and material to the issues involved in the action. (Nelson v. Anderson (1999) 72 Cal.App.4 th111, 131; Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court further finds that Defendant has offered adequate substantiation as to certain of the challenged costs b...

Excerpt: ...Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment. . .”].) Here, plaintiff argues Labor Code section 3601 cannot bar his claim for negligence ...

Excerpt: ...Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment. . .”].) Here, plaintiff argues Labor Code section 3601 cannot bar his claim for negligence ...

Excerpt: ...laintiff has established the probable validity of the claim and is entitled to the relief requested. Therefore, the Court is inclined to order that default judgment be entered and the writ of possession issued as requested in the moving papers. The above information is provided as a general description of the Court's view of the matter based on the papers submitted. However, the law requires a hearing on the application before the writ can be iss...

Excerpt: ...have demonstrated material disputes of fact concerning, at a minimum, the issues set forth in Defendant's Separate Statement of Undisputed Material Facts 13-16, 19, 29-30, 36-40 and Plaintiffs' Additional Material Facts 16(a)-(y) and 19(a)-(t). The parties' objections to the expert declarations of Richard Haygood and Dale Dunlap are OVERRULED. ...

Excerpt: ... for the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of ...

Excerpt: ... for the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of ...

Excerpt: ...ary injunction at this time. Therefore, the preliminary injunction shall issue, enjoining the Defendant Gina Bosio from the actions enumerated in the notice of the instant motion. The injunction shall remain in effect until final resolution of this action. Further, the issuance of the preliminary injunction is conditioned upon the Plaintiff's filing of an undertaking in the amount of $2,500 and filing proof thereof, in order to protect Defendant ...

Excerpt: ... were for matters necessary relevant and material to the issues involved 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 acts within its discretion in determining whether costs are excessive and should be reduced. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4 th 807, 816-817.) Therefore, after considering the arguments and ev...

Excerpt: ...egations regarding service. The court declines defendant's invitation to revisit this issue, since the ground defendant asserts is the same that supported the motion the court partially granted on January 25, 2019, when the court vacated the default and ordered defendant to answer. The court declined to quash service of summons, as well, and will not entertain an untimely request to<0003008600030014001300 13001b000f0003[ subd. (a).) ...

Excerpt: ...s that Plaintiff has established a reasonable excuse for the delay in amending the complaint to substitute Nathan Conner and Tisa Conner for DOES 1 and 2. Accordingly, the demurrer is overruled. b) Defendant's Motion to Strike Portions of First Amended Complaint – GRANTED, without leave to amend. A defendant may challenge the adequacy of punitive damages allegations by a motion to strike. (PH II, Inc. v. Superior Court(1994) 33 Cal.App.4th 1680...

Excerpt: ...ective Order to Modify the Subpoenas to: 1. Memorial Medical Center, 2. Memorial Medical Center/Billing Dept., 3. Memorial Medical/Radiology Dept., 4. Sutter Physical Services/Recovery Dept. TPL Unit, and Request for Sanctions in the amount of $1,810.00 against defendants and its attorney of record; c) Plaintiffs' Motion to Quash Defendant's Subpoenas for Medical Records; or in the Alternative for a Protective Order to Modify the Subpoenas to: 1....

Excerpt: ...ich may be resolved by summary judgment. (Ibid.) The evidence and inferences are in conflict in this case. Accordingly, the Court finds Defendant has failed to show there are no triable issues of fact. b) Plaintiff's Motion for Sanctions for Defendants' Refusal to Withdraw Frivolous Motion for Summary Judgment – HEARING REQUIRED. ...

Excerpt: ...sing statement and the referenced declarations and supporting exhibits. However, Defendants' failure in the first instance to supply sufficient evidence to negate the existence of a triable issue regarding the third cause of action for fraudulent inducement/concealment obviates further consideration of the evidentiary objections by either party. In each case, Defendants' proffered “fact” consists instead of a litany of conclusory and conteste...

Excerpt: ...e and import of federal preemption. Federal preemption, contrary to Defendant's assertion, is not merely a sub-species of “choice of law.” To the contrary, it goes to a trial court's fundamental subject matter jurisdiction, i.e., where federal law preempts state law it is not simply a question of which law one “chooses” to employ; it is instead a binary mandate that state law be disregarded in favor of federal law by virtue of the Suprema...

Excerpt: ...iv. Proc. §2033.280(c); St. Mary's v. Superior Court (Schellenberg) (2014) 223 Cal.App.4 th 762, 777-778.). Therefore, the matters contained in Request for Admissions, Set One, are deemed admitted. Further, the Court finds that Plaintiff is entitled to an award of monetary sanctions in the amount of $220 against Defendant, to be paid to Plaintiff's counsel within 30 days. (Code Civ. Proc. §§2023.010 et seq.; 2033.280(c); Cal. Rules of Ct., rul...

Excerpt: ...59(h); se e.g. Maldonado v. Superior Court (2002) 94 Cal.App.4 th 1390, 1398.) As no subpoena was issued, the Court is without the ability to compel his attendance in this instance. Moreover, the court notes that the parties are continuing to meet and confer with regard to Mr. Hampton's deposition and believes it is likely that the issues herein will be resolved through additional good faith efforts on the part of counsel. Lastly, the Court notes...

Excerpt: ...l.App.4 th 762, 777-778.). Therefore, the matters contained in Request for Admissions, Set One, are deemed admitted. b) Plaintiff's Motion for Evidence and Issue Discovery Sanctions – GRANTED, and unopposed. The Court finds that Defendant Roberto Chavez Alvarez has failed to comply with the Court's order dated 3-4-19 compelling discovery responses. Defendant's failure, coupled with the lack of any opposition to the instant motion, leads the Cou...

Excerpt: ...ore, future failures to oppose dispositive motions could result in Plaintiff losing the right to amend her pleading to attempt to allege additional facts to support her stated causes of action. ...

Excerpt: ...ause they lack standing, the Court should grant leave to amend the complaint to redefine the class or add a new class representative. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 328). Accordingly, the Court deems filed the First Amended Complaint (1) alleging a PAGA claim; (2) naming Robert Moyes as PAGA representative; (3) re-defining the class to include PAGA employees; and (4) adding a cause of action for declaratory relief from settlement ...

Excerpt: ...bility theory. (Chavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 617; La Vista Cemetery Assoc. v. Am. Sav. & Loan Ass'n (1970) 12 Cal.App.3d 365, 369.) The same holds true for Plaintiff's “aiding and abetting” theory. (Casey v. U.S. Bank Nat'l Ass'n (2005) 127 Cal.App.4th 1138, 1145.) The Third Cause of Action, as amended, fails to allege and plead with particularity the facts required for a conspiracy theory for the reasons set forth in De...

Excerpt: ... 1131, 1135.) Any significant departure from the procedural requirements on new trial motions deprives the trial court of power to grant the motion. Strict literal compliance is required. (Telefilm, Inc. v. Superior Court (1949) 33 Cal.2d 289, 294; Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899.) Here, Plaintiff has failed to file any supporting memorandum as required. (Code Civ. Proc. § 657; Cal. Rules of Ct., rule 3.1600.) While th...

Excerpt: ...cause of action or issue that is the subject of the motion in conjunction with the supporting material facts claimed to be without dispute with respect to each such cause of action or issue. (Cal. Rules of Ct., rule 3.1350(d)(1).) As such, the Separate Statement does not conform to the format specified by Cal. Rules of Ct., rule 3.1350(h). Such deficiencies are particularly troubling in the context of the moving defendant's alternative request fo...

Excerpt: ...r, the Court finds that Defendant/Cross-Complainant is not entitled to recover attorney's fees incurred in connection with the conversion cause of action in the Complaint or the defamation cause of action in the Cross-Complaint (on which she did not prevail at trial). Therefore, the court is inclined to reduce the lodestar amount of attorney's fees claimed by Defendant/Cross-Complainant herein by one-third in order to more accurately reflect the ...

Excerpt: ...523-524; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206; Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238 [reasonableness of the misconception and justifiability of the failure to determine the correct facts or law are discretionary determinations for the trial court].) Acting pro se, moving party initiated this action by filing one suit and naming each of the defendants independently. His testimony indicated an awareness of the defendant wi...

Excerpt: ...n interest in the affected real property, may apply at any time to the court to expunge the lis pendens. (Miller & Starr California Real Estate, 4th ed., § 10:154; Code of Civil Procedure, § 405.30.) The standard of proof for expungement of a lis pendens is that “the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real proper...

Excerpt: ...and analogous to those of section 473(b). (Mannino, supra, 142 Cal.App.3d at 779.) Where, as here, the responsibility for the waiver is solely attributable to the attorneys, the mandatory relief provisions, by analogy, strongly suggests relief should be granted based on the remedial purposes of the statutes in question. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1228.) The Court finds that timely supplemental responses were made by moving party...

Excerpt: ...rmit him to impair or destroy the client's cause of action or defense. (Seacall Develop. Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4 th201; Orange Empire Nat. Bank, (1968) 259 Cal.App.2d 347.) Defendant shall file her answer within 20 days. ...

Excerpt: ...hth Causes of Action herein, to the effect that no trial of such issues shall be had until final determination of the family law action. (Code Civ. Proc. §597.) The Court notes, however, that the First Amended Complaint in the instant action asserts claims on behalf of an additional plaintiff, Behavioral & Educational Strategies & Training (“BEST”), which is not a party to the earlier action; the Court has no authority to order that the inst...

Excerpt: ...ction of privileged materials, Plaintiff is nevertheless entitled to Code- compliant responses which provides sufficient factual information to allow Plaintiff to evaluate the merits of any claims of privilege, including provision of a privilege log where necessary. The Court further finds that all responsive documents not subject to a claim of privilege should be produced. Defendant shall provide further verified responses to the subject within ...

Excerpt: ...s stated, or which could be stated” and the voluntary dismissal with prejudice of Plaintiff's Complaint. Unlike the cases cited by both parties, Defendant's statutory offer contained no exemplar release or any express mention of the terms. As such, it is ambiguous as to any limitation of the “could be stated” claims to those arising out of the claim or claims actually raised in the case at bar. A section 998 offer must be reasonably certain...

Excerpt: ...or the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of th...

Excerpt: ...ration both relate to the substantive merits of the motion, and are not akin to the sort of blatant procedural mistakes that have been found tantamount to an involuntary dismissal or default. To the contrary, the attorney omissions in the case at bar—taken at face value—involve at best a misapprehension or misunderstanding as to the evidentiary rules, burdens and merits raised by the Defendants' motions for summary judgment. Accordingly, the ...

Excerpt: ...and/or unreasonable, such that the burden shifts to Plaintiff to show that the items charged were for matters necessarily relevant and material to the issues involved 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 acts within its discretion in determining whether costs are excessive and should be reduced. (Levy v. Toyota Motor Sales, U.S....

Excerpt: ... notice of its preparation by the reporter from the raw shorthand marks, and arguably not until signed and/or certified as such by the reporter itself. The intended use of the transcript is for trial and the reporter's sealing and certification are part and parcel of use and admiss<005700030049004c005100 47005600030057004b00480003> motion timely as the deposition was re-noticed, obligating objections to have been served upon such re-noticing, abs...

Excerpt: ...on Defendants Southern California Permanete Medical Group and the Permanete Medical Group, Inc.'s Demurrer to Plaintiff's First Amended Complaint The Court grants Defendants Southern California Permanete Medical Group and the Permanete Medical Group, Inc.'s Request for Judicial Notice. Evidence Code § 452(h). Judicial Notice is taken of Defendants' Exhibit A. The court sustains Defendants Southern California Permanete Medical Gro...

Excerpt: ... party's notice of intent are either not authorized statutory causes for new trial nor coherently related by moving party to an authorized statutory cause, or else moving party did not address or support such non-statutory causes in moving party's memorandum and affidavits. (Code Civ. Proc. § 659(b) [new trial motion limited to statutory grounds in notice of intent]; Code Civ. Proc. § 659a [supporting brief and affidavits required after filing ...

Excerpt: ...omplaint pleads facts which, when liberally construed, support Cross-Complainant's claim of delayed discovery. Therefore, the Court cannot conclude that the claims therein are time-barred as a matter of law at this stage. With regard to the First Cause of Action for Fraud, the Court finds that the Cross-Complaint does not allege facts with the required degree of specificity and is uncertain as to the conduct allegedly committed by these moving Cr...

Excerpt: ...ove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court further finds that Defendant has offered adequate substantiation as to some of the challenged costs but not as to others. The Court acts within its discretion in determining whether costs are excessive and should be reduced. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816-817.) The Court notes that Defendant has withdrawn its requests for co...

Excerpt: ... of Entry of Judgment. There is no extension of the deadline where service of the Notice of Entry of Judgment was by mail. (Code Civ. Proc. § 659(b).) As this is a jurisdictional requirement, the trial court has no power to entertain or act on the untimely motion; any purported grant of the new trial would be void. (Douglas v. Janis (1974) 43 Cal.App.3d 931, 936.) (b) The motion is untimely. A motion to vacate judgment requires filing of Notice ...

Excerpt: ...o system. Therefore, the matter is again continued and the parties are instructed to continue their efforts to resolve such issues. The parties shall submit a Joint Status Statement detailing their efforts no later than 5 court days before the continued hearing date. Such statement shall also identify any issues remaining in dispute and shall give a brief statement of the parties' positions on the same. CV-18-002271 – LEWIS, DERRECK VS GAILLOT,...

Excerpt: ...n one year after she first ‘discovers' the injury and the negligent cause of that injury. Secondly, she must file within three years after she first experiences harm from the injury.” (Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1054; italics in original; Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823 [discovery is defined as the point at which “the plaintiff is aware of both the physical manifestation of the injury and negli...

Excerpt: ... not provide for such a claim against a public employer. (Gov't. Code §815(a); see, e.g. Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.). As to the remaining causes of action, the Court will grant leave to amend in this instance despite Plaintiff's failure to oppose; however, Plaintiff is cautioned that it is his burden to demonstrate how additional factual allegations can overcome the demurrer. Therefore, future fail...

Excerpt: ...deemed to be presumptively valid, subject to any objections that may be heard at the final fairness hearing and final approval by this Court. The Court notes, however, that while fifty-percent of the residue from uncashed checks is to go to California Rural Legal Assistance, the remaining fifty-percent is left undesignated. Plaintiff is directed to designate in its Motion for Final Approval of Class Action Settlement the organization to which the...

Excerpt: ...ntal Declaration of Mark Romano) and supporting exhibits, including time records, that the 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.) However, the Court declines to award the time claimed for hours not expended at the time of the fili...

Excerpt: ...ly, the verification provided is insufficient and of no legal effect under the circumstances described in the moving papers. Therefore, Defendant is entitled to an order compelling Plaintiff to provide further verified responses, without objections, and to produce responsive documents within 14 days. (Code Civ. Proc. §§2031.310(a), 2031.280.) Further, the Court finds that Defendant is entitled to an award of monetary sanctions. (Code Civ. Proc....

Excerpt: ...pecifically, Defendant has failed to submit admissible evidence demonstrating facts supporting the claims of oppression, undue burden, and/or expense. Based on the information submitted, the Court is not convinced that Defendant engaged in a meaningful attempt to meet and confer prior to filing the instant motion. The parties are encouraged to undertake that process in good faith with regard to further discovery disputes. The Court declines to aw...

Excerpt: ... with her obligations under the Discovery Act, and that such failure has prejudiced the defense's ability to evaluate Plaintiff's claims and to prepare for trial. Therefore, the Court finds that terminating sanctions are warranted. (Code Civ. Proc. §2023.030(d).) Plaintiff Rosalinda Palomo's Complaint shall be dismissed as against Defendant Karla Ann Ciarolla herein. No further monetary sanctions are awarded. ...

Excerpt: ...eking relief from default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-G, § 5:401.) The Court further finds that relief from entry of default will result in no demonstrable prejudice to Plaintiff. (Elston, supra, 38 Cal.3d at p. 233; Fasuyi, supra, 167 Cal.App.4th at p. 696 [“very slight evidence” required to set as...

Excerpt: ...ed that Plaintiff had alleged only the glare of the sun as a dangerous condition. Plaintiff's third amended complaint alleges additional factors, such as location, failure to warn and the creation of a trap for students and drivers. Based upon the “amalgam” of these factors, reasonable minds could come to more than one conclusion as to whether a dangerous condition existed. As such, it is the jury's role to determine the facts and whether tho...

Excerpt: ...h on Civ. Code §2100, pertaining to common carriers, as well as under Civ. Code §1714 and the common law principles articulated in Rowland v. Christian(1968) 69 Cal.2d 108, 113.) While the Court notes that the existence of a statutory duty under Pen. Code §11164 et seq. is asserted in this matter, it appears that neither party was able to provide additional authority clarifying Defendant's status under that statute. Therefore, the Court looks ...

Excerpt: ...nable person on inquiry notice that EMC's diagnosis may have been incorrect. (See, e.g., Rose v. Fife (1989) 207 Cal.App.3d 760, 768–769.) All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important” ob...

Excerpt: ...ormation is crucial to the defense's preparation of the case; or that the deposition would even prove useful, considering the application of the attorney-client and attorney work product privileges. (Carehouse Convalescent Hospital v. Superior Court (Sims) (2007) 143 Cal.App.4 th 1558; Spectra-Physics v. Superior Court (Teledyne) (1988) 198 Cal.App.3d 1487.) b) Defendant's Motion for Order Compelling Further Responses to Discovery – GRANTED, in...