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...

Excerpt: ...ue with regard to the scope of Plaintiff's authority to agree to the subject arbitration provisions pursuant to the power of attorney she held for her mother. The law dictates that, regardless of the inclusion of a delegation clause in the subject agreement, this foundational issue must be determined by the Court. (Bruni v. Didion (2008) 160 Cal.App.4 th 1272, 1285.) Therefore, the Court finds that the power of attorney authorized Plaintiff to en...

Excerpt: ... of Starstone National Insurance Company – DENIED. a) Defendant, as the moving party, appears, on the face of the moving papers, to have met its burden of demonstrating entitlement to adjudication of the challenged causes of action herein. 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 in the deposition of Mr...

Excerpt: ...set forth in Corp. Code §800(b). Moreover, matters subject to judicial notice demonstrate that the composition of the corporate entity's board of directors changed after the submission of the original Complaint, such that Plaintiff is now required to demonstrate compliance with Corp. Code 800(b) with regard to the board as currently comprised. (Apple, Inc. v. Superior Court (2017) 18 Cal.App.5 th 222.) Therefore, the allegations are insufficient...

Excerpt: ...er, that Aspiranet knew of and ratified the harmful conduct of its counselor to Plaintiff. None of the various arguments Aspiranet raises takes this into account. Therefore, Aspiranet argues that the sexual abuse of Plaintiff by one of its counselors was outside the course and scope of that counselor's employment. However, Plaintiff alleges that Aspiranet knew of the sexual abuse, but continued to allow the counselor to take her under-aged client...

Excerpt: ...nds that Defendant, as the moving party, has met the burden of establishing its entitlement to judgment on the entire action herein. Plaintiff has not established a statutory basis upon which to pursue a negligence theory against Defendant under the facts alleged herein. Assuming arguendo that the City of Oakdale Municipal Code §4-13 represents the duty alleged in this matter, this Court cannot conclude that such duty is mandatory within the mea...

Excerpt: ...ELD LLC (“Pontus Mag”) against cross‐defendants BARBER AUTO MALL PROPERTIES, L.P.; BARBER FAIRFIELD MANAGEMENT COMPANY, LLC; and RONALD L. BARBER (“Barber Defendants”) is subject to arbitration and the scope of that arbitration. It is undisputed that the Real Estate Purchase Agreement (“REPA”) assigned to Crosscomplainant contains an arbitration clause. Any party to a contract containing an arbitration provision may file a petition ...

Excerpt: ...te elements clear. Defendants argue that the statute of limitations has run as to the cause of action for breach of the implied covenant of good faith and fair dealing. As to the facts alleged in the First Amended Complaint in support of the cause of action, Defendants are correct. However, in the event that Plaintiff is able to allege other facts that would support such a cause of action, the Court will not foreclose the attempt. Plaintiff is th...

Excerpt: ... Executive's fault in this matter could be for as much as 100% of Plaintiff's damages. Inasmuch as Plaintiff has no viable claim against Executive itself, the statute of limitations having run, the settlement must be measured against the claim made by Core for indemnity and contribution, and this settlement is out of proportion to Executive's potential liability for Core's claims. Executive has much more insurance available than it is proposing t...

Excerpt: ...ion for arbitration shall contain a declaration, under penalty of perjury, stating whether (i) the insured has a workers' compensation claim; (ii) the claim has proceeded to findings and award or settlement on all issues reasonably contemplated to be determined in that claim; and (iii) if not, what reasons amounting to good cause are grounds for the arbitration to proceed immediately. Although Claimant's motion claimed that a demand for arbitrati...

Excerpt: ...e same injury, and the same instrumentality. Therefore, Defendant's challenge to the subject causes of action on statute of limitations grounds is DENIED. With regard to the enumerated items in Defendant's notice herein, Plaintiffs concede that Items 1 and 7 set forth in Defendant's notice are erroneous and require correction. In view of that concession, the motion is GRANTED as to those items and Plaintiffs are granted 20 days leave to submit th...

Excerpt: ...ddress Plaintiff's current ill health, or otherwise. While this Court is sympathetic to Plaintiff, and wishes him a swift recovery, the failure to respond to the discovery or Plaintiff's counsel's failure to communicate with defense counsel is improper. The Court therefore grants Plaintiff 15 days to respond to Defendant's Requests for Production of Documents, Form Interrogatories, Special Interrogatories and Deeming Requests for Admission. Furth...

Excerpt: ...dividuals have not left the Hospital's employ, and to get further information about them at that time, Plaintiff may file supplemental interrogatories, especially as Defendant has agreed to allow Plaintiff more discovery than that to which he is entitled under the Code of Civil Procedure. None of the case law cited by Plaintiff requires further information be provided regarding witnesses who are employees of a party. Nor does this holding require...

Excerpt: ...d Complaint for Reverse Validation; b) Plaintiff's Motion for Stay of Proceedings; c) Defendants Motion to Sever Grassland Groundwater Sustainability Plan Claims; d) Defendants' Motion for Separate Trial; e) Defendant Aliso Water District Groundwater Sustainability Agency's Motion to Change Venue; f) Defendant Farmers Water District Groundwater Sustainability Agency's Joint Motion to Sever and/or to Transfer and Change Venue; g) Defendant County ...

Excerpt: ... sale of the property in compliance with Code of Civil Procedure sections 873.600 through 873.690 The referee shall have authority to contract for independent services that are reasonably necessary to obtain the best outcome for the parties, including hiring of a real estate agent, disposal of garbage and abandoned personal property, may give authority to have limited, and may give access to the property for purposes of clean-up and removal of pe...

Excerpt: ...f action lies against a real estate agent for allegedly providing incorrect information regarding the value of a property, whether that information is provided negligently or, as Plaintiffs allege, deliberately in order to obtain a commission before its listing agreement expired. Defendant further makes arguments, particularly in its Reply, that depend upon the proof of facts that are not alleged in the First Amended Complaint and not susceptible...

Excerpt: ...– DENIED, as MOOT in view of the Court's ruling on the demurrer. 1. The Court finds that the allegations in the First Amended Cross-Complaint fail to state facts supporting the stated causes of action against the moving parties herein, Roberto Cuellar, Jr. and Robert Cuellar, Sr. Of note, while the demurrer appears to make certain arguments on behalf of the other named Cross-Defendants, moving counsel herein does not appear to represent such pa...

Excerpt: ...y improper and deprived Plaintiff of an opportunity to respond to Defendant's arguments in that regard. Nevertheless, the Court finds that a determination as to the enforceability of the delegation clause is foundational to the permissible scope of the Court's decision with regard to the other issues presented by the instant motion. (Aanderud v. Superior Court (Vivint Solar Developer, LLC) (2017) 13 Cal.App.5 th 880.) Therefore, the hearing shall...

Excerpt: ...otion reveals that such disputes exist as to the uniformity, application and effect of the Defendant's rest policies, negating the Plaintiff's ability to demonstrate on a classwide basis or as a matter of law, as applied, the result of the Defendant's policies establishes the Labor Code violations alleged. While Plaintiff is certainly correct that Defendant may not contravene binding judicial admissions made in response to lawful requests for adm...