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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...-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: ...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: ..., 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: ...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: ...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...