Excerpt: ...f specific types of necessary medical care “many times each day for the entirety of decedent's care at defendants' facilities” during specified dates (FAC, ¶ 12), is adequately specific. Also, because it alleges staff failed to follow doctor's orders regarding skin breakdown despite knowledge of the harm posed to decedent, the first amended complaint pleads acts that could constitute actionable neglect of an elder. (Sababin v. Superior Court...

Excerpt: ...whether Defendant failed to reasonably accommodate Plaintiff's disability during the relevant time period preceding Plaintiff's termination, i.e. August 22, 2017 – August 30, 2017. Specifically, Plaintiff presents conflicting evidence with regard to whether Defendant bears at least some of the responsibility for the breakdown in the interactive process involved in Defendant's evaluation of Plaintiff's accommodation request during the relevant t...

Excerpt: ...rcycle Club v. Western Title Guaranty Co. (1975) 47 Cal.App.3d 747, 754 [“ ‘Prescriptive rights are established only when the enjoyment thereof is adverse, continuous and under claim of legal right, and not by consent, permission or mere indulgence of the owner of the alleged servient estate.' ”]; O'Banion v. Borba (1948) 32 Cal.2d 145, 150 [“ ‘The question as to whether or not the use of a right of way has been adverse and under a clai...

Excerpt: ...nth, Ninth and Twelfth causes of action allege claims that are not available against a public entity as a matter of law. (Gov't. Code §815(a); Miklosky v. Regents of the Univ. of Calif. (2008) 44 Cal.4 th 876, 900-901; Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24.) The Sixth and Eighth causes of action appear to assert claims that are not properly pleaded under FEHA and are, in any case, duplicative of the First and Second Causes of action and, ...

Excerpt: ... qualify as managing agents. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.) Here, the SAC alleges plaintiffs complained about decedent's care to “individuals who are believed to be charge nurses and/or nurses who were charged with the responsibility for overseeing the care and treatment provided to decedent reviewing and evaluating patient care policies and procedures, planning for improvement of medical care in the facility, and assurin...

Excerpt: ...he moving defendant. (Code Civ. Proc. §430.10(e).) Specifically, the factual allegations appear to sound in professional negligence as opposed to conduct undertaken with the intent to cause Plaintiff severe emotional distress. Additionally, the pleading does not contain specific factual allegations with regard to the distress suffered. Plaintiff is granted leave to submit an amended pleading. b) The Court finds that the allegations of the First ...

Excerpt: ...to the well. “While the Court may interpret the terms of the parties' settlement agreement, ‘nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' ” (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374.) In this case, the language of the settlement agreement is at least somewhat ambiguous as to wh...

Excerpt: ...ot have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christopher...

Excerpt: ... not have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christoph...

Excerpt: ...ts' Demurrer to the Second Amended Complaint, based on the pleadings, accompanying exhibits, and the briefs of both parties, the Court finds as follows: As to the Second Cause of Action for Fraud as to Cross-Defendant Nora Herrera, the allegations of the Second Amended Cross-Complaint does not plead facts with sufficient particularity as to the specific conduct by the named cross-defendant. Particularity means pleading facts which “show how, wh...

Excerpt: ...tting the Truth of Unanswered Requests for Admission, Compelling Verified Further Responses to Written Discovery, and Request for Sanctions – a) GRANTED, in part; DENIED, in part With regard to Requests for Admissions, Set One, the Court finds that Plaintiffs have entirely failed to respond to the information requested in #1-4, despite acknowledging their “inadvertent” omission and promising to rectify the same in May 2019. Therefore, the C...

Excerpt: ...plaint on its face states facts sufficient to constitute a cause of action for general negligence in subrogation and that the Defendant's Answer on its face fails to state sufficient facts to constitute either any denial of Plaintiff's allegations or a meritorious affirmative defense. (Code Civ. Proc. § 438(c)(1)(A); Bezirdjian v. O'Reilly (2010) 183 Cal.App.4 th 316, 321 [matters subject to mandatory judicial notice deemed part of pleading and ...

Excerpt: ...ain insufficient. (As just one example, Plaintiff's further response to Request for Production No. 3 is: “I do not have the documents.” This is not a code-complaint response.) Therefore, based on all of the pleadings and papers in the file, the Court GRANTS the Defendant's motion to compel further responses to Form Interrogatories, General, Set One Nos. 2.7, 4.1, 7.1 – 7.3, 8.3, 8.8 and 17.1, as well as Requests for Production of Documents,...

Excerpt: ...is Plaintiff's employer) and Defendant HSI, who contends it is not. Defendant HSI seeks only to sequence the discovery in this matter to achieve this goal, not to impose a complete, permanent ban on any particular topic of discovery. Defendant HSI has demonstrated good cause for such an order. Notably, precluding production of an HSI “class list” at this time will further the interests of justice in that it will prevent an entirely unwarrante...

Excerpt: ...nfidence and when the client suspects and questions the good faith of his attorney the attorney should be permitted to withdraw from the case unless some very compelling reason exists for forcing him to continue with the ungrateful task.” (Heple v. Kluge (1951) 104 Cal.App.2d 461, 462.) While the court is sympathetic to plaintiff's predicament, his inability to find substitute counsel is not a “very compelling reason” to deny counsel permis...

Excerpt: ...is Plaintiff's employer) and Defendant HSI, who contends it is not. Defendant HSI seeks only to sequence the discovery in this matter to achieve this goal, not to impose a complete, permanent ban on any particular topic of discovery. Defendant HSI has demonstrated good cause for such an order. Notably, precluding production of an HSI “class list” at this time will further the interests of justice in that it will prevent an entirely unwarrante...

Excerpt: ..., Richards, Wilson & Co. v. Insurance Communicators Marketing Corp. (1993) 12 Cal.App.4 th 1249, 1263.) Had Plaintiff's dismissal of three of the four causes of action she originally alleged, including the cause of action on which the Court found a triable issue of material fact on the earlier MSJ/MSA, occurred before the issuing of a ruling on the earlier MSJ/MSA, the Court likely would have reached the merits of Defendant's arguments instead of...

Excerpt: ...ust that Dabblicious may have breached oral agreements, but also that it beached the contract itself by failing to conduct batch testing and allow remediation as allegedly required by industry standards. Dabblicious's attack on the third cause of action for fraud fails because, although JDI did not provide the name of the employee who met with its representative to discuss the processing agreement, it gave a month, year and location for the meeti...

Excerpt: ... Lind's motion described him, an industrial medicine doctor. However, Dr. Schwartz has presented evidence that she and Dr. Lind both practice “general medicine,” and as a physician she “has special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on” (Evid. Code, § 720, subd. (a)) that topic. (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970.) “Whether [her] knowledge in these areas w...

Excerpt: ...� GRANTED, in part; DENIED, in part, subject to evidentiary hearing. The Court find that Plaintiffs have demonstrated entitlement to entry of default against the unknown parties designated in the Complaint as “the testate and intestate successors of Barbara Plant, deceased, and all persons claiming by, through, or under such decedent; and all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property...

Excerpt: ...regard to Requests for Admissions, Set One, the Court finds that Plaintiffs' responses to #3 and 24 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to Form Interrogatories, Set One, the Court finds that Plaintiffs' responses to #8.7, 8.8, 9.1 and 9.2 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to #12.1-12.6, 13.1 and 13.2, the C...

Excerpt: ...n this case. No declaration of any kind accompanies the motion, which does not contain the information that was supposed to be included in the declaration. The court is therefore missing facts essential to its determining the motion. In addition, the court agrees with the opposition that plaintiff has failed to articulate a viable theory of damages to support a cause of action for either trespass or conversion. ...

Excerpt: ...LC has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Defendant shall provide answers, without objection, within 14 days of service of notice of entry of the order. Further, the Court finds that Plaintiff is entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the above-described discovery requests. (Code Civ. Proc. �...

Excerpt: ...th regard to the alleged existence of a dangerous condition at the subject intersection. Specifically, Plaintiffs have demonstrated material disputes of fact concerning, at a minimum, Defendant's Separate Statement of Undisputed Material Facts 3, 8, and 9. For example, the Court finds that factual issues exist as to whether the traffic controls in place at the intersection at the time of the accident were out of compliance with applicable regulat...

Excerpt: ...quately specific. Also, because it alleges staff failed to follow doctor's orders regarding skin breakdown despite knowledge of the harm posed to decedent, the first amended complaint pleads acts that could constitute actionable neglect of an elder. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) However, plaintiffs' references to decisions by unnamed “management” of defendant are insufficient to allege the type of ratification req...