Excerpt: ...ause of Action, for Intentional Infliction of Emotional Distress (IIED), relies on authority where the employer's conduct consisted of “common supervisory actions.” The Court must accept as true the allegations properly pled by Plaintiff in deciding a pleading motion. As such, allegations that Defendants made derogatory comments directed to Plaintiff's weight and physical appearance, and that Defendants only hired females who met a certain �...

Excerpt: ...Objections: 1. To Paragraph 7 of Mr. Martin's expert declaration on the basis of lacks foundation. OVERRULED. Mr. Martin identified the rules at Paragraphs 13 and 15 and Exhibit D, referenced in Paragraph 4. As to misstating the evidence of the “photo,” OVERRULED. While the Court agrees the Declaration is misleading as to it being a still photograph, the videos from which the still was captured were introduced into evidence, to which there is...

Excerpt: ...er. (See, e.g., Id. at p. 1227 [“ ‘ “[W]hether an environment is ‘hostile”' or ‘abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' “].) The court declines to consider the contentio...

Excerpt: ...hibit and the exhibit contradicts the allegations of the complaint, “those in the exhibit are given precedence.” (Sarale v. Pac. Gas. & Elec. Co. (2010) 189 Cal.App.4th 225, 245.) Defendant requested judicial notice of the Conditions of Agreement [“COA”], to which Plaintiff seemingly concurs, or at least, does not object. The Court will take judicial notice of the COA. Both parties also seek judicial notice of various trial court or unpub...

Excerpt: ...OVID‐19 NOTICE: The Court encourages all attorneys and self‐represented parties in law and motion hearings to appear via Court Call. You may contact Court Call as follows: www.courtcall.com or call 888‐882‐6878. Please check in by 8:20 AM for the 8:30 AM calendar. To submit on a tentative decision, e‐mail the Court at [email protected] or by fax to Judge McKaig's secretary, Isabel Alarcon, at 805‐477‐ 8790. If a part...

Excerpt: ...y theory. (Cal. Civ. Pro. §452; Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 245; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The facts stated in a complaint and any exhibit attached thereto are presumed true when faced with an attack on demurrer. (Saxer v. Phillip Morris, Inc. (1975) 54 Cal.App.3d 7, 18; Cross-Talk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) Generally, California requires only a genera...

Excerpt: ...ees entirely, but exercises its discretion under Cal. Civ. Pro. Section 1033.5(a)(4)(D) to determine an appropriate cost. Dr. Allman's testimony is a more difficult subject. Efforts were made by both counsel to reduce the costs involved. Given the technical hurdles, Plaintiff's counsel was legitimately unable to generate a remote appearance despite the stipulation by counsel and agreement by the court. Dr. Allman's costs and fees were actually in...

Excerpt: ...vil complaints filed in other cases are sustained and the Court did not consider them. 1. Disability Discrimination in Violation of FEHA (First Cause of Action); Retaliation (Fourth and Seventh Causes of Action); Failure to Prevent Discrimination/Retaliation (Fifth Cause of Action); Wrongful Termination in Violation of Public Policy (Eighth Cause of Action) Both discrimination and retaliation claims are analyzed using the McDonnell Douglas shifti...

Excerpt: ...ject discovery requests were served by mail on April 30, 2021, as previously promised. However, the evidence submitted by the defense raises a significant issue with regard to the veracity of the Plaintiffs' claims in this regard. Moreover, the defense has demonstrated that the opposition herein was not served in compliance with the requirements of Code Civ. Proc. §1005(c), despite the attestation contained in the proof of service attached there...

Excerpt: ...is code section in his opposition. Plaintiff asserts in his Third Amended Complaint that based on the conduct reported, the county was necessarily negligent in performing a mandatory duty to impose placement. Becerra v. County of Santa Cruz (1998) 68 Cal.App.4 th 1450 holds that placement decisions in the foster care realm are subject to immunity for discretionary acts. To the extent probation controls placement, that placement would be discretio...

Excerpt: ... Judge Claster's thoughtful and thorough review of the legal and factual issues in the related case. The Court asks counsel to be prepared to address the following issues: 1. What is the current schedule for all Orange County hearings? 2. Is Plaintiff estopped from arguing that the Zimmers case does not extinguish this case given his explicit argument that counsel should be paid $144,375 because his case would be extinguished and these efforts le...

Excerpt: ...tiffs' Complaint - DENIED. (a)The Court finds that the insurer defendant is entitled to enforce the appraisal provisions contained in the contract. However, the scope of the appraisal process is limited to the determination of the amount of loss incurred under the policy, and it does not encompass determination of Plaintiff's other claims at issue in this matter. (See, e.g. Appalachian Insurance Company v. Rivcom Corp. (1982) 130 Cal.App.3d 818.)...

Excerpt: ...notes that Defendant failed to submit a substantive response to the motion but only challenged the sufficiency of Plaintiff's initial meet-and-confer efforts. With regard to Form Interrogatory 7.1, the Court finds that all objections are waived due to the lack of a verified response. However, the substance of the response is sufficient. Therefore, Plaintiff is entitled to obtain Defendant's verification but no additional responsive information is...

Excerpt: ... Second Amended Complaint - SUSTAINED, with leave to amend; d) Defendants Robert Barandica, M.D., and CEP America-California's Motion for Order Striking Portions of Plaintiffs' Second Amended Complaint - DENIED, as MOOT; e) Defendants Thanh Huynh, M.D. and Hospitalists of Modesto Medical Group, Inc.'s Demurrer to the Third and Fourth Causes of Action of Plaintiffs' Second Amended Complaint - SUSTAINED, with leave to amend; f) Defendants Thanh Huy...

Excerpt: ...e Court is relying on the application for late claim for that timeline, which Respondent agrees with. The Court believes the actual deadline to file would have been on or near January 17, 2021 (Cal Gov't Code section 911.2; Executive Orders N-35-20, N-71- 20.) Petitioner located the Del Puerto Health District, spoke to people at the district, spoke to the police, and spoke to the City of Patterson in an effort to determine the best course of acti...

Excerpt: ...he motion is untimely with regard to the request to recover costs, which is governed by the provisions of Cal. Rules of Ct., rule 3.1700 et seq. (See, e.g. Sanabria v. Embrey (2001) 92 Cal.App.4 th 422.) Therefore, the motion is DENIED as to costs on that basis. Further, to the extent the motion seeks recovery of expert fees incurred by Cross-Defendants, the Court finds that the moving parties have failed to demonstrate that the contract provisio...

Excerpt: ...Defendant agreed to dismiss his claims for negligence and intentional tort and filed an “Amendment to Complaint to Add Verified Petition for Writ of Mandate.” On March 2, 2020, Judge Dougherty ordered that Defendant “be allowed to file his petition for Writ of Mandate.” This document, while proffered as an addition to the existing complaint, did not contain any other claim other than the Writ of Mandate. The claims for negligence and inte...

Excerpt: ...Cause of Action for Negligent Infliction of Emotional Distress are SUSTAINED, without leave to amend. Defendants' Demurrers as to the Second Cause of Action for Violation of the Elder Abuse and Dependent Adult Civil Protection Act, CA Welfare and Institutions Code §§15600, et seq. are SUSTAINED, with leave to amend. Negligent Infliction of Emotional Distress is but a form of negligence. Burgess v. Superior Ct. (1992) 2 Cal.4th 1064, 1071-1072.)...

Excerpt: ... response under oath unless the response contains only objections.” (Cal. Civ. Pro. 2030.250 [interrogatories], 2031.250 [requests for production], 2033.240 [requests for admission].) The statutes provide that objections are to be signed by the attorney. The responses at issue that contained only objections were signed by the attorney and served on their due dates. As to Form Interrogatory 17.1, it is not covered by the Notice of Motion. Furthe...

Excerpt: ... for Failure to Provide Meal Periods – STAYED. a) and b) Plaintiff's Third Amended Complaint specifically alleges alter-ego and successor-in-interest theories and alleges that SEG assumed all of the liabilities arising out IOT's employees' employment. The Asset Purchase identified specific contracts which were not be assumed but the Arbitration Agreement is not identified as an excluded contract. Rather, the employment contracts and liabilities...

Excerpt: ...t Gardner Trucking, INC.'s Renewed Motion for Summary Judgment or in the Alternative Summary Adjudication – GRANTED, and unopposed. (a)Defendant, as the moving party, has the initial burden of establishing a prima facie showing of entitlement to judgment against Plaintiffs as a matter of law. The Court finds that the Defendant has met its burden with regard to the each challenged cause of action herein as well as the claim for punitive damages....

Excerpt: ...djudication as to the Second Cause of Action for general negligence based on premises liability is DENIED. Taking all reasonable inferences in favor of the non-moving party, Shooter Farms has failed to provide sufficient foundation as to the industry standard. While Wendel Trinkler, Jr. has been a farmer for over 30 years, conditioning the almond harvest was “new” to him. (Plaintiff's Material Fact #12.) There are triable issues of material f...

Excerpt: ...subject subpoena. Therefore, the Court finds that the records in question shall be produced first to Plaintiff's counsel, who will perform an initial review in order to identify the materials which meet the agreed-upon criteria for production as to time frame and body part limitations. Plaintiff's counsel shall prepare a detailed privilege log with regard to all redacted information; the privilege log shall contain sufficient factual information ...

Excerpt: ...ilizing, or disclosing any of Level-It's proprietary, confidential and/or trade secret information and/or utilizing anyone in Defendant's employment to do the same;  Performing any future contracts obtained through the use of Level-It's proprietary, confidential and/or trade secret information;  Soliciting Level-It's employees through the use of Level-It's confidential, proprietary, and/or trade secret information or through the use of inti...

Excerpt: ...or Express Contractual Indemnity, the Court finds that the pleading fails to allege facts that give rise to express indemnity obligations arising out of this action under the relevant agreement. Therefore, the demurrer is SUSTAINED as to the First Cause of Action; however, the Court will grant leave to amend in this regard. With regard to the Second and Third Causes of Action for Implied Indemnity and Equitable Indemnity, the Court finds that the...