Excerpt: ... 893, 938.) A complaint must be read as a whole. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for failing to state facts sufficient to constitute a cause of action must be to the entire cause of action, not specific factual allegations. (Code of Civ. Proc. §430.10(e).) The eight allegations identified in the demurrer as supporting the nuisance claim, when read as a whole, sufficiently state the elements for a private nuisance claim. (...

Excerpt: ...motional distress, and public nuisance. (Code Civ. Proc. §430.10(e).) The amendments included in the present version of the pleading are minimal and appear to consist only of contentions and conclusions rather than additional factual allegations supporting the same. Therefore, based on the allegations in the Second Amended Complaint, it appears that the action sounds in negligence. As Plaintiff has failed to demonstrate the ability to allege any...

Excerpt: ...her First Amended Complaint ‐ CONTINUED on the Court's own motion to January 28, 2022, at 8:30 a.m. in Department 24. a) Defendant's moving papers – including its separate statement of undisputed material facts, the declarations of Kaitlin E. Showerman and Armando Flores, the exhibits attached thereto and the documents of which the Court takes judicial notice – demonstrate that Defendant is entitled to summary judgment. Where a party has ma...

Excerpt: ...'s First Amended Cross‐Complaint – DENIED, in part; GRANTED, without leave to amend, in part. a) A complaint may allege multiple theories and the same facts can support different causes of action. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) The Demurrer is OVERRULED as to the Second and Third Causes of Action being duplicative of the First Cause of Action. (See, e.g., Carma Devs. (Cal.), Inc. v. Marathon Dev. California,...

Excerpt: ....) A complaint must be read as a whole. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for failing to state facts sufficient to constitute a cause of action must be to the entire cause of action, not specific factual allegations. (Code of Civ. Proc. §430.10(e).) The eight allegations identified in the demurrer as supporting the nuisance claim, when read as a whole, sufficiently state the elements for a private nuisance claim. (San Diego...

Excerpt: ...s not require production of the data requested by Plaintiff in connection with the contemplated exam. (Code Civ. Proc. §2032.610; Roe v. Superior Court (2015) 243 Cal.App.4 th 138.) In addition, the defense examiner, Dr. Glidden, has expressed concerns about the implications of the requested production with regard to his professional ethical obligations, and the law recognizes the trial court's discretion in evaluating such concerns. (See, e.g. ...

Excerpt: ... damages. Specifically, the declarations of Steven Fugaro, M.D. and Jay Solnick, M.D. raise disputed factual issues with regard to whether Dr. Akmal's alleged failures in rendering treatment to Plaintiff Witter fell below the standard of care and proximately resulted in the Plaintiffs' claimed injuries. (See, at a minimum, Plaintiffs' evidence in response to UMFs 5‐7.) Plaintiffs' objections to Defendant's evidence are OVERRULED as to Items 1�...

Excerpt: ...n part. a) The Motion to Amend was filed December 22, 2021, which is untimely for not being filed/served at least 16 court days before the hearing date in violation of Code of Civ. Proc. Section 1005(b). b) Preliminarily, Plaintiff's objections to counsel representing the individual employees is not supported by evidence and a separate motion would be required to recuse the attorney. The first ten causes of action merely identify parties and fact...

Excerpt: ...laim, given the timing of various discussions. Thus, we reach the merits. Pub. Res. Code section 21167.6(e)(7) and (10) provide: (e) The record of proceedings shall include, but is not limited to, all of the following items: (7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project. (10) Any other written materials relevan...

Excerpt: ...ponses, no substantial justification or unjust conditions are shown to avoid the imposition of modest sanction. This Court finds that the filing fee of $60, plus 1.5 hours of attorney time, is reasonable, for a total sanction of $750.00 – payable by plaintiffs within 10 days. Defendant to give notice. ...

Excerpt: ...ion of Public Policy: Plaintiff has met the minimal threshold to demonstrate a prima facie case of discrimination based on race related to the shift schedules and assignments of less‐desirable tasks. (Material Fact ## 2, 3, 14; Additional Material Fact ## 82, 89, 96, 97,101, 102.) Defendant has met its burden to explain the legitimate non‐discriminatory basis for these business decisions. (Material Fact ## 9, 10, 11, 12, 13, 162.) Plaintiff h...

Excerpt: ...ion of Public Policy: Plaintiff has met the minimal threshold to demonstrate a prima facie case of discrimination based on race related to the shift schedules and assignments of less‐desirable tasks. (Material Fact ## 2, 3, 14; Additional Material Fact ## 82, 89, 96, 97,101, 102.) Defendant has met its burden to explain the legitimate non‐discriminatory basis for these business decisions. (Material Fact ## 9, 10, 11, 12, 13, 162.) Plaintiff h...

Excerpt: ...D as to the Streets and Highway Code and the City Ordinances. The Request is DENIED as to the Google Maps street image and City of Modesto Public Works website. City's Objections to Evidence are SUSTAINED as to 1‐8 pertaining to Zachary Moore's Declaration. The objections are OVERRULED as to numbers 9 and 10 pertaining to Maxine and Felix Bracero's Declarations. Church's objections to evidence are SUSTAINED as to 1‐ 12 pertaining to Zachary M...

Excerpt: ...mages. Specifically, the declarations of Steven Fugaro, M.D. and Jay Solnick, M.D. raise disputed factual issues with regard to whether Dr. Naing's alleged failures in rendering treatment to Plaintiff Witter fell below the standard of care and proximately resulted in the Plaintiffs' claimed injuries. (See, at a minimum, Plaintiffs' evidence in response to UMFs 5‐7.) Plaintiffs' objections to Defendant's evidence are OVERRULED as to Items 1‐6 ...

Excerpt: ...e allegations of the Complaint to create a triable issue of fact. College Hospital, Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 720, fn.7. 2. Exhibit D – various objections – OVERRULED. Exhibit D was provided as a response to Form Interrogatory 201.1 and as such is admissible under Code Civ. Pro. section 437c. 3. and 4. Exhibits F and H—lacks foundation/authentication—SUSTAINED. The attorney cannot provide the foundation for the documents. Cod...

Excerpt: ... already at issue in this case, and do not open up a wide range of other issues. Whether the allegations can ultimately be proven is not a relevant inquiry for whether the amendment is proper. The Court will sign the proposed order submitted with the moving papers. b) The moving party must establish good cause for the delay in filing. The moving parties previously attempted to file this motion but it was not timely served. It is not clear from th...

Excerpt: ... issue of standing for this purpose. In fact, the word “standing” does not appear in La Jolla Grp. II. This is unhelpful to the Court. Furthermore, even if Defendant's assertion that Plaintiff requires ownership or possessory interest is correct, the Complaint suggests, at a minimum, that Plaintiff has possessory interest. Therefore, the Motion for Judgment on the Pleadings as to the First Cause of Action on the issue of standing is DENIED. T...

Excerpt: ... the trustee's sale is final, but subsequent case Melendrez v. D&I Investment Inc. (2017) 127 Cal.App.4 th 1238 clarifies that the borrowers' challenge was not always precluded – the fundamental issue of whether the buyer was a bona fide purchaser is subject to litigation with an eviction case even after a trustee's sale which appears on its face to be valid. But, in this case, there is no allegation that E5 is not a bona fide purchaser. While ...

Excerpt: ...e court finds consolidation is proper because plaintiff has shown the presence of “common question[s] of law or fact.” (Code Civ. Proc., § 1048, subd. (a).) Gregg v. Patrick CV‐21‐002839 is to be consolidated into this action, with CV‐19‐005163 remaining the lead case number. b) The granting of defendant Patrick's consolidation request means this case is no longer at issue, such that all discovery and related deadlines will be calcul...

Excerpt: ...aint – GRANTED. Defendant Pedro Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections to th...

Excerpt: ...ourth Causes of Action of Plaintiffs' Third Amended Complaint ‐ SUSTAINED, without leave to amend; d) Defendant Doctors Medical Center of Modesto Inc.'s Demurrer to Plaintiffs' Third Amended Complaint – SUSTAINED, WITHOUT leave to amend. (a) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (b) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (c) Both causes of action subject ...

Excerpt: ...n because she was late. People v. Gutierrez was originally set in Department 23 at 9 a.m. on August 2, 2021. The Court reassigned Gutierrez to itself as the later‐filed related case under California Rule of Court 3.300(h). Because it was set for 9 a.m., the court retained that time but moved the case from Department 23 to Department 21. The Court wanted to keep the cases together. DDA Cramton filed a declaration to the OSC re: sanctions regardi...

Excerpt: ...ion to Compel Responses from Defendant Valiplug, Inc. to Requests for Production; e) Plaintiff and Cross‐ Defendant Rainy Prock's Motion to Compel Responses From Defendant Valiplug, Inc. to Requests for Admission; f) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses from Defendant Darron Silva to Requests for Inspection or Production of Documents; g) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses...

Excerpt: ...omplaint – GRANTED. Defendant Candida Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections...

Excerpt: ...djudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Arnulfo Garibay, in his First Amended Complaint – GRANTED. Defendant Orlando Torres Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Gari...