Excerpt: ...ent, whether written or oral. The applicable statute of limitations is therefore two years under Code of Civil Procedure, section 339. As the original cross-complaint was not filed until March 12, 2020, six years after Carlson left the property, the statute of limitations has run. Nor does the doctrine that a cross-complaint “relates back” to the filing of the original complaint save this cause of action, as the complaint was filed on April 1...

Excerpt: ...annot dispute that he has received payments from the at-fault party and his workers' compensation carrier that exceed his $50,000 per person underinsured motorist (UIM) policy limit – even conceding that the settlement of the workers' compensation coverage lien reduced the amount of compensation paid to Petitioner. Section 11580.2 precludes Petitioner from recovering twice for the same injury. See e.g. Rangel v. Interinsurance Exchange (1994) 4...

Excerpt: ... filing of a claim for property damage only led to a comedy of errors. Plaintiff's counsel prepared a claim for both property damage and bodily injury, but somehow neglected to send it to the City. In the meantime, the City rejected the original claim. When Plaintiff's counsel received the rejection, she logically concluded that the rejection applied to the claim she thought she had filed. This new evidence brings all of the facts into context, a...

Excerpt: ... to pay all lienholders, much less to leave anything for the plaintiff in the underlying litigation, the entire fund must be interpleaded. (Code of Civil Procedure section 386; see also Rutter's Guide to Civil Procedure Before Trial, Ch. 2-F (2019) at 2:470.) Plaintiff is granted 30 days, or until October 5, 2020, to file and serve an amended complaint.” Plaintiff has now filed a First Amended Complaint that does not correct the defect found in...

Excerpt: ...) The award in Plaintiff's favor represented only unpaid rents which Defendant conceded he owed at the outset, and both parties acknowledged that Defendant's attempt at payment of the same was rejected by Plaintiff in favor of pursuing his claims herein. Therefore, the Court concludes that Plaintiff did not realize his primary litigation objective and the resulting judgment represented a mixed result of both good news and bad news for both partie...

Excerpt: ...ch has not agreed to arbitrate and is not bound by the plaintiff's agreement to do so. As the court noted in Correia v. N.B. Baker Electric, Inc. (4 th Dist. 2019) 32 Cal.App.5 th 602, 622: “These courts [that is, the California Courts of Appeal that have considered the question] have uniformly held that an employee's predispute agreement to arbitrate PAGA claims is not enforceable without the state's consent.” See also Collie v. Icee Co. (4 ...

Excerpt: ...gnosed with any asbestos-related disease or condition, undergone any BAP1 gene testing, and, if so, where the testing was performed. Plaintiffs objected on the grounds that the interrogatories are not relevant nor reasonable calculated to lead to the discovery of admissible evidence; breach of the attorney-client privilege and work-product doctrine; the invasion of the privacy of third parties; and that the information sought constitutes prematur...

Excerpt: ...ve a proper deposition notice in compliance with Code Civ. Proc. §§2025.270 and 1010.6(a)(4)(A). Accordingly, she has not demonstrated entitlement to the requested relief. 2. The Court finds that the Plaintiff's supplemental disclosure is improper under the circumstances, as the importance of expert testimony on the standard(s) of care applicable to the defendants herein and the calculation of repair damages appear to be fundamental issues whic...

Excerpt: ...ard to the Third and Fifth Causes of Action. The Third Cause of Action for Specific Performance fails to allege facts supporting the conclusion that Plaintiff has no adequate remedy at law. The Fifth Cause of Action for Promissory Estoppel fails on the grounds that the First Amended Complaint admits the existence of an enforceable contract. While it is presently unclear to the Court whether Plaintiff will be able to allege additional facts to cor...

Excerpt: ...n that the Motion to Intervene is untimely. The cases Plaintiff cites, Allen v. California Water &Tel. Co. (1947) 31 Cal.2d 104, 108 and Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 664, both deal with motions to intervene brought after a trial or hearing, and are inapplicable to the present case. In addition, Plaintiff has been disingenuous about its failure to notify CSAA of the default judgment; he served another insurance company i...

Excerpt: ...for claims to be made against governmental employees, not governmental entities. No leave to amend is granted as to the claim against the District. The First Cause of Action is adequately pleaded as to Defendant Gordon. Defendants asserts that Gordon did not exercise supervisory authority over Plaintiff, but that question is one of fact; as to pleading, Plaintiff has pleaded his claim adequately. The Complaint alleges that Gordon specifically com...

Excerpt: ...dants' granted Plaintiffs permission to use the property now claimed to be a prescriptive easement. The parties should be prepared to discuss the proper date and time for such a hearing. In the interim, the Court renews its Temporary Restraining Order until such time as the hearing takes place and is ruled upon. Plaintiffs' evidentiary objections to Defendants' Opposition to Motion are sustained. Plaintiffs' evidentiary objections to the Declarat...

Excerpt: ... asks that the following excerpts be sealed from the public:  CVMG's Second Amended Complaint at 5:5-10, 9:28-10:3, 10:21-22, 10:28, 11:1-2, 35:26, 36:2-3; and  CVMG's “mootness brief” at 2:10, 6:10-20. These are the same excerpts that defendant asked this Court to seal a few months back. As a refresher, this Court denied the request in pertinent part as follows: “Based on the foregoing, it is impossible to effectively seal ‘financi...

Excerpt: ...o him, printing it out and striking the provision before signing it and returning it to Petitioner, or following the specific procedure outlined in the arbitration procedure itself, that is, by sending a notarized letter to his supervisor and to human resources. Mr. Nguyen relies heavily on Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4 th 83 to support his opposition to the petition. However, Armendariz is specifically ...

Excerpt: ... not a reason to refuse to stay this matter. Plaintiff's argument that this case is aging and that a stay of discovery will cause memories to blur and electronic data to decay gives pause, but the likely very short duration of a stay poses little possibility of prejudice to Plaintiff. Plaintiff's suggestion that the existence of another wage and hour class action proceeding in the Merced County Superior Court should preclude a stay is not persuas...

Excerpt: ... employees, not governmental entities. No leave to amend is granted as to the claim against the District. The First Cause of Action is adequately pleaded as to Defendant Gordon. Defendants asserts that Gordon did not exercise supervisory authority over Plaintiff, but that question is one of fact; as to pleading, Plaintiff has pleaded his claim adequately. The Complaint alleges that Gordon specifically complained about Plaintiff's job performance ...

Excerpt: ...Prof. Code §10023 applies to the relationship between Plaintiff and Defendants; that the criteria set forth in Unemp. Ins. Code §650 are met here; and that Lab. Code §2750.3 (d)(1), now enacted as Lab. Code §2778(b)(1), bars Plaintiff's claim. Likewise, the Court previously ruled that a challenge to the constitutionality of such legislation based on due process concerns fails because the newly enacted Labor Code provisions did not change the ...

Excerpt: ...�clear and convincing” evidence – it must be highly probable that the challenged act was the result of undue influence. David must present evidence that raises more than a suspicion that undue influence was used. He must prove circumstances inconsistent with voluntary action by the testator. Estate of Mann (1986) 184 Cal.App.3d 593, 607. Here, that burden is not met sufficient to warrant a writ of attachment. b) Christopher Duke's Order to Sh...

Excerpt: ...Esq. Exhibits B-K thereto lack authentication and are inadmissible as described due to lack of foundation and lack of personal knowledge of the declarant. (Evid. Code §403, 702.) Exhibits L-M are not submitted in compliance with the requirements set forth in Cal. Rules of Ct., rule 3.1116. For instance, in Defendants' Separate Statement, Undisputed Fact Nos. 11-43 cite exhibits, and only exhibits, supporting the facts. Those exhibits are referre...

Excerpt: ...eparate statement. The Court has concerns, however, with regard to the narrow scope of evidence provided in support of the motion, particularly in view of the apparent existence of controverting evidence and Defendant's failure to identify and address the same. Had Defendant properly identified such items of evidence, the Court questions whether Defendant would have been able to carry his initial burden on the above-identified issues. In any case...

Excerpt: .... While Defendant Duarte is responsible for setting wages at the highest level, he has no involvement in determining whether the time needed to punch a time clock or doff protective equipment should be paid or not. Nor does he instruct individual employees regarding when their breaks start or end. While he acknowledges that he has responsibility for making sure that rest breaks and lunch periods are provided to employees in the first instance, th...

Excerpt: ...dence demonstrating the existence of a material factual dispute preventing adjudication of the subject claims. Plaintiff has failed to carry her burden in this regard. Specifically, Plaintiff submitted no admissible evidence establishing that Defendant McMillian concealed or misrepresented material information in connection with her fiduciary duty to Plaintiff concerning the subject transaction. Accordingly, Plaintiff cannot establish the require...

Excerpt: ... 22 [“A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments”].) Because the Court cannot take judicial notice of the testimony and other admissions by Plaintiff in the preceding federal litigation, the Court cannot conclude that Plaintiff suffered no injury. The Cour...

Excerpt: ...fficiency of the plea in abatement, and then to order the actions consolidated, regardless of defendant's opposition.” (5 Witkin, Cal. Proc. 5th Plead § 1138 (2020); Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 217-218.) Second, there are claims raised in this case that are not at issue in either of the other two pieces of litigation Defendant points to. The Dancy matter concerns only exempt employees, while one of the subclasses in ...

Excerpt: ...es not oppose Defendant's evidence establishing that the nurses and technicians in its employ met the standard of care with regard to her treatment, and Defendant is entitled to adjudication of that issue. Plaintiff opposed the motion on the sole issue of whether the hospital might nevertheless be held liable for Dr. Brock's conduct under an ostensible agency theory. In that regard, Plaintiff submitted evidence that the hospital's notice to her r...