Excerpt: ... Special Interrogatories, Set One and Request for Sanctions —GRANTED IN PART AND DENIED IN PART; d) Plaintiff's Motion to Compel Further Responses of Defendant Secret River, Inc. to Request for Production of Documents, Set Two and Request for Sanctions —GRANTED IN PART AND DENIED IN PART; e) Plaintiff's Motion to Compel Further Responses of Defendant Smart Management & Co., Inc. to Special Interrogatories, Set One and Request for Sanctions �...

Excerpt: ...aises issues with regard to the state of the administrative record. The Court currently believes an "unofficial" transcript is likely to be sufficient but expects to give Respondent tme to review it for accuracy. The Court further anticipates permitting tme for a sur-reply rather than automatically striking the reply. Therefore, the Court is unlikely to be able to consider the merits of the writ petition and expects to contnue the hearing to a fu...

Excerpt: ...sexual abuse by the Perpetrators on Plaintiff which was reported to Defendant between January 1, 1997- 2001. The Court finds that Defendant has not pled sufficient facts to establish that Defendant was a mandatory reporter under Penal Code 511164-11174.3, Child Abuse and Negligent Reporting Act (CANRA), when Plaintiff allegedly made his second report of sexual abuse by William and David Shook to Defendant. Accordingly, Defendant's Demurrer to Pla...

Excerpt: ...on. (White Lighting Co. u Wolfson, (1968) 68 Cal. 2d 335, 344). The Court finds that Plaintiff's claim herein has probable validity. (Code of Civil Procedure section 481.190; Loeb and Loeb v. Beverly Glen Music, Inc. (1985) 166 cal.App.3d 1110). The Court additionally finds that an attachment may not be issued herein on grounds that Plaintiff's claim herein is not readily ascertainable, based on Plaintiff's failure to provide evidence of the hour...

Excerpt: ...aises issues with regard to the state of the administrative record. The Court currently believes an "unofficial" transcript is likely to be sufficient but expects to give Respondent tme to review it for accuracy. The Court further anticipates permitting tme for a sur-reply rather than automatically striking the reply. Therefore, the Court is unlikely to be able to consider the merits of the writ petition and expects to contnue the hearing to a fu...

Excerpt: ...on. (White Lighting Co. u Wolfson, (1968) 68 Cal. 2d 335, 344). The Court finds that Plaintiff's claim herein has probable validity. (Code of Civil Procedure section 481.190; Loeb and Loeb v. Beverly Glen Music, Inc. (1985) 166 cal.App.3d 1110). The Court additionally finds that an attachment may not be issued herein on grounds that Plaintiff's claim herein is not readily ascertainable, based on Plaintiff's failure to provide evidence of the hour...

Excerpt: ...ch appears to include issues the Court has already resolved. Terry says the Court has no discretion to do anything other than grant her motion. She is wrong. First, she says that under Marriage of Woolsey (2013) 220 Cal.App.4th 881 at 898, the permissive "may" in S 664.6 becomes a "shall," if the Court finds the settlement enforceable. The Court was unable to find this language and is unconvinced. But more to the point, the Court has already foun...

Excerpt: .... Atlantic Richfield Co. (2001) 25 cal. 4th 826, 850). Accordingly, Defendant's motion for summary adjudication as to the lack of Defendant's liability to Plaintiff as a matter of law because Kevin Ray Zanders was not acting within the scope of his employment he engaged in tortious conduct towards Plaintiff, is hereby granted. (Aores v. AutoZone W„ Inc., (2008) 161 cal. App. 4th 373, Mary M. u City ofLos Angeles (1991) 54 cal.3d 202). The Court...

Excerpt: ...ave not yet received the Bills of Sale. Without the Bills of Sale, performance cannot occur, and the cause of action for breach of contract has not yet accrued. Defendants therefore have defeated their own sham pleading argument because their admissions demonstrate that the correct cause of action here is anticipatory breach, not actual breach. The cause of action is not barred by the statute of limitations. The statute of limitations on a cause ...

Excerpt: ... to contain contract specifics inclusive of the date renders the complaint fatally vague. Second, the failure to allege a contractor's license causes the complaint to fail as currently pled. (See Phoenix Mechanical Pipeline, Inc. v. Space Exploration Technologies (2017) 12 Cal.App.5th 842.) The Court is skeptical that expert testimony is necessary. Plaintiff's contenton that the contractor's license is necessary is not supported by the Space X ca...

Excerpt: ...12/29/23 at 8:30 am in Department 22 is ADVANCED and CONTINUED to 1/12/24 at 8:30 am in Department 22, to be heard concurrently with the motion to award costs. MOTION FOR NEW TRIAL: The Court will hear arguments on the following issues: 2. Special Verdict Form Responses re Vicarious Liability: The Court notes that Plaintiff failed to address this argument in his opposition. The Court would like to hear from the parties on this Issue. Damages Awar...

Excerpt: ...rified that when — as is the case here - a petition challenges the disinheritance of a beneficiary from a trust, the petitioner has "limited stand-ng" to challenge the validity of the trust instrument which disinherited him. Therefore, the Court must first decide the "threshold issue" of the validity of the trust instrument which disinherited Petitioner here the Second Amendment to the Trust. If the trust amendment pursuant to which the benefic...

Excerpt: ...ff's Motion for Orders Compelling Responses to Requests for Admission Set One and Awarding Sanctons of $2,600.00 Against Defendants and Their Attorney of Record Michael Warda —GRANTED, unopposed. a) The Court finds that Defendant failed to timely respond to the requested discovery or at all. Accordingly, Plaintiffs unopposed motion to compel defendant to prov-de full and complete responses, without objections, to plaintiffs second set of form i...

Excerpt: ...ubstantial probability exists that the overriding -nterest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restri ctive means exist to achieve the overriding interest. The overriding interest here is the "highly confidential" and "commercially sensitive" information contained in the declarations filed by Mr. Hughes and Mr. Retsloff in support ofthe settlement negotiations between Plai...

Excerpt: ...dly injured in the accident and the timeframe for the medical records to 15 years before the date of the accident. The request for a protective order is DENIED, as the specifics of a protective order were not addressed in the motion. If counsel wish to agree on a protective order, the Court is likely to enter one. The Court views the limitation at 15 years and the body parts involved as sufficient given the facts of the case. The initial request ...

Excerpt: ... in its previous order of 10/4/23 warned Defendant that further failure to comply with the Court's orders could result in the imposition of more stringent sanctions up to and including terminating sanction. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc., (2020), 56 Cal. App. 5th 771). Accordingly, Plaintiff's application for issue sanctions to be imposed against Defendant is hereby granted. The allegations of Plaintiffs complai...

Excerpt: ... for Admissions Set No. Admitted and Request for Order Awarding Monetary Sanctions Against Defendant— GRANTED, unopposed. a) The Court finds that Defendant failed to timely respond to the requested discovery or at all. Accordingly, Plaintiffs unopposed motion to compel defendant to prov-de full and complete responses, without objections, to Plaintiff's Request for Production of Documents, Set One, is granted pursuant to Code of Civil Procedure ...

Excerpt: ...Production of Documents; Request for Sanctons— GRANTED, and a) The Court finds that Plaintiff entirely failed to to the subject discovery and all objections are waived. (Code Civ. Proc. S 2030.290(a).) Therefore, Defendants are entitled to an order compelling Plaintiff to provide verified responses, without objection, within 14 days. (Code Civ. Proc. S 2030.290(b).) The Court further finds that Defendants are entitled to an award of monetary sa...

Excerpt: ... the arbitration proceedings. The representative claims in the class action complaint are dismissed. Both the individual and representative portions of the PAGA complaint are stayed pending arbitration. a) Defendant contends that California law is pre-empted in these complaints by the Federal Arbitration Act ("FAA"). Plaintiff does not dispute Defendant's contention that it is engaged in interstate commerce within the meaning of the FAA and thus ...

Excerpt: ...dant Fulmer Pursuant to California EVIDENCE Code Section 1043 - GRANTED in part and DENIED in part. a) Plaintiffs' motion is GRANTED in part and DENIED in part. Plaintiffs' motion to compel responsesto the three questions set forth in the notice of motion and motion is GRANTED. Any issues, questions, or "matters of first impression" arising during the meet and confer process which occurred after the Court initially heard the Plaintiffs' motion an...

Excerpt: ...p.4th 118). The Court finds that Plaintiff, as the prevailing buyer under Code of Civil Procedure 51794 (d), is entitled to the award of reasonable attorney's fees incurred in the prosecution of Plaintiff's Song Beverly Act Claim herein. The Court also finds that the pre-engagement activity undertaken by Plaintiff's Counsel prior to signing Plaintiff on as a client is compensable. (Hogar Dulce Hogar v. Cmty. Dev. Com. of City of Escondido, (2007)...

Excerpt: ...pt sanctions. As to the discovery dispute, the Court intends to grant Plaintiff's remaining requests in full. Plaintiff's requests for the search terms seems entirely reasonable, and the other requests for responsive documents appears to have been met with non-responsive additions. The Court does not issue discovery sanctons in this case, as meet and confer efforts prior to the initial hearing date were insuffcient. Importantly, Defendant argues ...

Excerpt: ...ffs Eliseo Rivera, by and through his guardian ad litem Elvia Rivera and Elvia Rivera's First Cause of Action for Medical Malpractice fails because the care provided to Ms. Rivera by Memorial's nursing staff met the applicable standard of care include the following: Whether Defendant's nurses operated below the appropriate standard of care in failing to obtain an estimated fetal weight (E W) upon Plaintiff's admission to Defendant's hospital. (Pl...

Excerpt: ...tion of the application of the immunity provided in Civ. Code S 846 (UMFs 21, 24, 25 and Plaintiff's Additional Facts 33-38, 40, 43, 44), she has failed to meet her burden as to Defendant's actual or constructive notice of the allegedly dangerous condition and causation (UMF 9, 26-30). Therefore, the Court finds that Defendant is entitled to judgment in its favor on the grounds that Plaintiff cannot establish these elements of her cause of action...

Excerpt: ...6) 44 Cal.App.4th 194, the existence of a valid written contract renders invalid claims of unjust enrichment or implied-in-fact contract. Because of this, it is unclear which specific theory Plaintiff is electing. The Court finds that the pleading fails to allege conduct beyond the failure to pay the subject rebates as promised; therefore, the present allegations do not support the Cause of Action for Breach of the Implied Covenant of Good Faith ...

Excerpt: ...ugh a fee request should generally be documented in detail, a judge may properly base a fee award on the attorney's declaration, in the absence of tme records and billing statements. (Cruz v Fusion Buffet, Inc. (2020) 57 cal.5th 221, 237; Bender v county ofLosAnge/es, (2013) 217 cal.4th at 987). The court considering an attorney's fee award may require a defendant to produce records sufficient to provide a proper basis for determining how much ti...

Excerpt: ... towards a finding of procedural unconscionability, may not by itself lead to a finding of procedural unconscionability. (Lane v. Francis Cap. Mgmt. LLC, (2014) 224 cal. App. 4th 676, citing Peng v. First Republic Bank (2013) 219 cal.App.4th 1452, 1472). The Court therefore finds, in combination with the voluntary nature of Plaintiff's signing of said arbitration agreement, and the prominent notice at the top of said arbitration agreement requiri...

Excerpt: ...Sur-Reply below. Rulings on Defendants' objections: 2. 3. 4. OVERRULED. This is a bare assertion. SUSTAINED. OVERRULED. OVERRULED. The Court has two motions before it: One is styled as a Motion to Compel Defendants' Responses to Plaintiff's Special Interrogatories, Set One, and the other as a Motion to Compel Defendants' Responses to Plaintiff's Request for Documents, Set One, both filed October 18, 2023 (all dates are in 2023). Neither motion ha...

Excerpt: ...efendant's motion argues that it is not liable to indemnify Cross-Defendant Nicklaus Rey Siguenza because it is not liable to Plaintiff, the fact that the Court concludes Defendant's motion should be denied — with regard to both primary and alternative relief — dispenses with any need to rule directly on issues raised by Defendant's motion as it pertains to Cross-Defendant Siguenza. The Court believes the Plaintiff's evidence of "substantiall...

Excerpt: ...that Defendant's provision to Plaintiff of new admission paperwork and a new arbitration agreement for execution upon each occasion of Plaintiff's readmission to Almond Vista's facility, particularly after the 2016 arbitration agreement between the parties permits an inference that any previous arbitration agreement between the parties was accordingly revoked and or terminated. Accordingly, Plaintiff's refusal to sign the 3/14/19, 6/11/19, 2/12/2...

Excerpt: ...quest, itemize the deductions. The Court "shall" make whole Plaintiff and his counsel. The Court finds the rates cited as reasonable and notes that Plaintiff's counsel appears to have not contributed adversely to the substantial delay this case has suffered. This amount is to be paid within 30 days. The Court further issues a $750 penalty payable to the Court under Code Civ. Proc. S 473(c)(1)(A). This matter has taken more of the Court's time tha...

Excerpt: ...-8: OVERRULED. It is not entirely clear that these statements are based on direct knowledge, but the Court assumes they are. Objection 9: OVERRULED. The Court takes this as a statement of opinion. Objection 10: SUSTAINED. Plaintiff Bettencourt filed a Complaint in this action on July 6, 2021, alleging negligence by various defendants including Fletcher K and Escalera (UMF 1-2.). Plaintiff alleged that she tripped on a bush stump. (UMF 3). Fletche...

Excerpt: ... adjacent to Alcantar's property, and it is disputed whether Alcantar had responsibility for the sidewalk. After he was sued, it was determined that the insurance company was not paid via the accounts. As to the Third Cause of Acton for Negligence, Cenlar's strongest argument is the economic loss rule. But as noted in Southern California Gas Leak Cases (2019) 7 Cal. 5th 391, the primary exception to the general rule of no-recovery for negligently...

Excerpt: ... Court finds, upon the application of the factors listed in Tech-Bilt Inc. v Woodward-Clyde Associates, that Settling Defendants application demonstrates the good faith nature of the settlement between Plaintiffs and Settling Defendants. (Tech-Bilt Inc. v Woodward-Clyde Associates (1985) 38 Cal.3d 488, code of Civil Procedure SS 877, 877.6). The Court also finds that said settlement amount of settlement is within reasonable range of Settling Defe...

Excerpt: ...siness and Professions Code. Specifically, plaintiff has pled sufficient facts demonstrating a loss or deprivation of money or property sufficient to qualify as an injury in fact, i.e., economic injury, and that said economic injury was result of, i.e., caused by, the unfair business practice. (Cal. Bus. & Prof. Code S 17204, Prager Univ. v. Google LLC, (2022), 85 Cal. App. 5th 1022, review filed Jan. 17, 2023). Additionally, Plaintiff has allege...

Excerpt: ...nably entitled to $24,756 in attorney's fees, $3258.33 in costs and $760 in unpaid sanctions awarded by the Court on 3/8/23. (Nightingale v. Hyundai Motor America (1994) 31 cal.App.4th 99, 104) b) As a general rule, the Court may amend its judgment at any time so that the judgment will properly designate the real defendants. (Danko v. O'Reilly (2014) 232 Cal. App. 4th 732, Cade Civ. Proc. S 187.) Furthermore, Code of Civil Procedure S 187 which g...

Excerpt: ...sk Manager to "accept, negotiate, settle and pay general liability and worker's compensation claims up to" and respectively, whereas Plaintiffs claim notice was for The Court therefore finds that said Human Resources Director and Risk Manager were not authorized to reject Plaintiff's claim. The Court accordingly finds the rejection emanating from the City of Modesto dated 5/12/22 to be invalid and ineffective. Accordingly, Defendant's demurrer to...

Excerpt: ...mages The Court grants the MS] on the following -ssues: Issue 5: Discrimination. Issue 6: Retaliation. PROCEDURAL ISSUES: The language and numbering of the issues is not exactly parallel in the notice of moton and the separate statement. As such, the Court has the discretion to deny the moton on that basis. The Court declines to do so. EVIDENTIARY ISSUES: Plaintiff's objections to Defendant's evidence: 1-3: Overruled. These objections go toward w...

Excerpt: ..., no such statement had been filed as ordered and the Court again re-issued the order to file the joint status statement and again continued the hearing to this date in order to determine compliance. (Minute Order of 10/3/23.) As of this posting, the Court's docket does not reflect that any such joint status statement has been filed and Plaintiffs moton has not been withdrawn nor has a notice of settlement been filed with the Court. Accordingly, ...

Excerpt: ...Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1153-1154.) The Court finds that Plaintiff has failed to demonstrate that the agreement should not be enforced herein. Specifically, Plaintiff has demonstrated only a slight degree of procedural unconscionability in connection with the adhesive nature of the agreement, and that alone is insufficient to render the agreement unenforceable. Plaintiffs arguments ...

Excerpt: ...bode" means the place defendant holds out as his or her principal residence and where he or she is most likely to receive actual notice. Zirbes u Stratton (1986) 187 cal.App.3d 1407, 1415-1417. In Zirbes v. Stratton the plaintiff left copies of the summons and complaint against Wife (i) at the restaurant she owned with estranged Husband (but she did not work there); and (ii) at her mother's home (listed as her residence on her drivers license). T...

Excerpt: ... or usual place of abode" means the place defendant holds out as his or her principal residence and where he or she is most likely to receive actual notice. Zirbes u Stratton (1986) 187 cal.App.3d 1407, 1415-1417. In Zirbes v. Stratton the plaintiff left copies of the summons and complaint against Wife (i) at the restaurant she owned with estranged Husband (but she did not work there); and (ii) at her mother's home (listed as her residence on her...

Excerpt: ...ategories and documents specified in Plaintiff's deposition notice. To the extent that the latter issues are raised bythe instant motion, the Court finds that the motion is premature. In addition, the papers demonstrate insufficient meet-and-confer efforts on those issues. With regard to the scheduling of the deposition itself, the Court notes that the defense has indicated a willingness to produce a qualified witness at a "mutually agreeable dat...

Excerpt: ...convenient Forum — a, b and c- DENIED. California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable. (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496.) However, a forum selection clause will not be enforced if doing so would bring about a result contrary to the public policy of this state. (Smith, supra, at pp. 496-497; C...

Excerpt: ...ly. The Court finds that there is no excusable neglect, which is the only grounds cited in the Notice of Moton or Motion itself. Further, there was no Answer attached to the motion, which renders the Court without authority to proceed. The Court cannot rule on the motion effectively made in the reply brief without giving Plaintiff an opportunity to respond, which is one option. If Plaintiff elects to have the motion for mandatory relief heard wai...

Excerpt: ...cial Interrogatories, Plaintiff's instant application is now moot. The Court declines to impose monetary sanctions on grounds that Defendant's Counsel's calendaring error constitutes substantial justification for failingto respond to said Special Interrogatories. (Code of Civ. Proc. section 2023.030 (a)). b) GRANTED. The Court finds that Defendant has substantially complied with Plaintiff's propounded discovery. Further, that Defendant's failure ...

Excerpt: ... neurological examination." It then lists some issues the doctor will check and concludes that he will do other medically necessary tests. This is facially deficient. The Court considers the assertions raised first in the reply brief only to note that this still isn't sufficient. code Civ. Proc. SS 2032.220(c), 2032.320(d), and carpenter v. superior court (2006) 141 cal.App.4± 249, 260 outline the requirement to specify the procedures in detail,...

Excerpt: ...Court is unpersuaded that conversations prior to the filing of the complaint about the dispute are sufficient to give actual notice of the lawsuit. As Plaintiff concedes, the request for relief under S 473.5 is timely. Defendant asserts that he was not given actual notice despite multiple mailings and efforts to contact him. The assertion of lack of knowledge is unconditional. Sanctions are only available under S 473, and not S 473.5. In this cas...

Excerpt: ... are waived. (Code Civ. Proc. S 2031.3W(a).) Moreover, the Court finds that Plaintiff has not complied with the requirements for relief set forth in Code Civ. Prtw S 2031.3W(a). Therefore, Defendant is entitled to an order compelling Plaintiff to provide verified responses, without objection, within 14 days. (CINIe Civ. Proc. S 2031.3w(b).) In addition, the Court finds that Defendant is entitled to an award of monetary sanctions in connection wit...

Excerpt: ...ourt also finds the unanimous rate of participation by class members to be a strong factor in approving this settlement. The Court also finds the awards to the Class Representatives and to the Class Members to be appropriate given all relevant factors of the Settlement. The Court also finds the attorney's fees to be comparable to the award of fees generally issued by California Courts. Therefore, the Class Class Representatives, and Class Counsel...