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: ...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: ... 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: ...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...