Excerpt: ...erplate is one non‐frivolous contention: that the declarations contain insufficient foundational basis for the attached exhibits. However, the declarants aver familiarity with the subjects of the declarations, including how the systems work, which is sufficient. Plaintiff alleges that she would not have entered the arbitration agreement with Lyft had she known, and does not think that she actually did. To the contrary, Lyft provides evidence th...

Excerpt: .... Price declaration, paragraph 22: Sustained, hearsay. 4. Price declaration, paragraph 24: Overruled, relevant to the effect on the listener. 5. Sustained. 6. Sustained. 7. Overruled. The Court will consider the late‐filed declaration. This case was originally filed in Fresno County in November, 2018. A First Amended Complaint was filed on February 26, 2020. In this case, Plaintiffs Lewis and Price allege that they worked for Defendant through ...

Excerpt: ...ne's December 2019 decision includes a finding that MID's 2016 rates were “unlawful” – “the Court has not determined whether MID's electric rates exceeded its costs”. Obviously, both statements cannot be true. In the Court's view, Judge Beauchesne's decision did conclude that MID's rates were unlawful – and constitute an improper tax. While Judge Beauchesne mentioned two specific facts in support of this conclusion – a reported $2.6...

Excerpt: ...rt or through deliberate avoidance of service on Defendant's part. Plaintiff's late‐filed opposition contains no admissible evidence that Defendant's address was as asserted. Plaintiff's counsel declares that an investigator did research, but does not identify the investigator or the research. If it did include that information, it would be hearsay. Plaintiff's assertion that unrepresented parties should be treated the same as represented parti...

Excerpt: ...n (15) days of signing same but failed to do so thereby breaching said agreement. The Court further finds that Plaintiff waived said breach by subsequently arranging with Defendant to retrieve said items on 9/15/22 (Whitney Inv. Co. v. Westview Dev. Co, (1969) 273 Cal. App. 2d 594). Accordingly, on 9/15/22 P should have delivered all items agreed upon in 2.e.1‐8 of said Settlement Agreement to Defendant. The Court also finds that under said Set...

Excerpt: ...e Code Section 1304(a). Samuel Orozco et al.'s Petition for Order Construing Trust Instrument, Determining Rights and Powers, Ascertaining Beneficiaries, Instructing Trustee, Quieting Title and Removing Trustee (“The Petition for Order Construing Trust Instrument”) is appealable under Probate Code Sections 1303(f) and 1304(a). Samuel Orozco et al.'s Petition for Removal of Henry Orozco as Personal Representative of the Estate of Guadalupe Oro...

Excerpt: ...in respect of Lara 1, as well as in respect of the Dismissal with Prejudice subsequently filed therein. (Probate Code § 50, Garcia v. Rehrig Int'l, Inc., (2002) 99 Cal. App. 4th 869). The Court further finds that Plaintiff's claims herein are precluded by the Settlement Agreement and dismissal with prejudice entered in Lara 1. Plaintiffs herein cannot state facts sufficient to constitute a case of action as they are estopped from doing so. As it...

Excerpt: ...ms related to the buyers' purchase of the property, including those against the broker; (2) all claims related to the deposits/holdbacks that were part of the purchase of the property; and (3) all claims related to the purchase contract and SIP (“Seller License to Remain in Possession Addendum”) between the Trust and the buyers pursuant to the Court‐approved settlement agreement. Motion, page 12, lines 6 – 9. Plaintiff argues that the Com...

Excerpt: ...arty, the court may grant leave to complete discovery closer to the initial trial date or to reopen discovery after a new trial date has been set. The date initially set for trial was October 4, 2022, so discovery originally closed on September 4, 2022, and the last day to hear a discovery motion was September 19, 2022. However, plaintiff filed an ex parte application to continue the trial date and “related dates thereto”. In the ex parte app...

Excerpt: ...September 9, 2022 minute order requiring Plaintiff to retain a lawyer and file a First Amended Complaint by November 7, 2022, in the absence of which Plaintiff was required to provide a declaration under penalty of perjury explaining the basis of said failure. Plaintiff has failed to retain a lawyer, failed to file a First Amended Complaint and failed to provide an explanatory declaration. Accordingly, Defendants' Motion to Dismiss is hereby GRAN...

Excerpt: ...o be premature for failure to participate in mediation and for failure to demonstrate good faith participation in the arbitration ordered by the Court in its minute order of January 3, 2022. (Weiler v. Marcus & Millichap Real Estate Investment Services, Inc (2018) 22 Cal. App. 5th 970, 981.) Should Plaintiff subsequently elect to refile the instant application, the Court will require Plaintiff to demonstrate the inability of Plaintiff's estate to...

Excerpt: ...e service payment of $10,000.00. The average payment to participating class members is estimated to be $4,603.25, with the highest payment being $9,830.46. The attorney's fees of $166,666.67 are reasonable. This represents one third of the gross settlement amount, which is a standard benchmark in California for class action settlements. Chavez v. Netflix, Inc. (2008) 162 Cal. App. 4th 43, 66, fn. 11. One‐third of the total settlement amount is ...

Excerpt: ...iew of Estrada, supra, in June 2022, explicitly allowing the opinion to continue to be cited both for persuasive value and for the limited purposed of establishing the existence of a conflict in authority which supports the exercise of the trial courts' discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 to choose between sides of such a conflict. (See Standing Order Exercising Authority Under California Rules of ...

Excerpt: ... considered sanctioning Plaintiff's counsel for its efforts to put before this court the unpublished rulings from other trial courts in clear violation of Rule of Court 8.1115. The Court has an affirmative obligation to deter rules violations and will be dismayed if this effort to do so is unheeded. (See TBG Ins. Service Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 447, fn2.) The Court has authority to determine arbitrability. (Sargon Enter...

Excerpt: ...o not apply to page length restrictions, that pages 5‐21 are a one‐page overage. In fact, they are a two‐page overage, as 17 pages is two pages more than 15 pages. I note that simply subtracting the page numbers – like subtracting days or other countable numbers – gives an answer that is one off. I intend the sanction as educational. I would surely have granted additional pages had I been asked to do so. Flouting the Rules of Court is n...

Excerpt: ...al facts are in dispute. The fact that World International is no longer represented by counsel is not a reason for the Court to delay in making its ruling, because the Court has given World International sufficient warning and time to obtain new counsel and/or to request a continuance of the hearing. On October 6, 2022, the Court granted defendant World International's counsel's Motion to be Relieved as Counsel. Carmen Millan, an accountant for W...

Excerpt: ...the Court granted Plaintiff's Motion to Deem Requests for Admission Admitted as to Angels Crossing. As a result of the Court's ruling Angels Crossing is deemed to have admitted that as the owner of the subject properties it is obligated to pay the special taxes, that it has not paid any of the special taxes, that the special taxes for tax years 2018/2019 and 2019/2020 have not been paid, and that the special taxes are delinquent. There are no Iss...

Excerpt: ...d severally. The fact that World International is no longer represented by counsel is not a reason to cause the Court to delay in making its ruling, because the Court has given World International sufficient warning and time to obtain new counsel and/or to request a continuance of the hearing. On October 6, 2022, the Court granted defendant World International's counsel's Motion to be Relieved as Counsel. Carmen Millan, an accountant for World In...

Excerpt: ... a material factual dispute preventing judgment thereon. Plaintiff has failed to carry this burden. Specifically, Plaintiff has failed to demonstrate that the additional insured endorsement for completed operations coverage in the 2010‐2012 policies covered Plaintiff's insured, since the definition of an additional insured under that endorsement and the related schedule requires reference to the terms of the subcontract between the parties' ins...

Excerpt: ... Southwest made a global settlement proposal on March 8, 2021. Cohen Declaration, Exhibit A, pages 7 and 22. In an e‐mail dated March 9, 2021, Alamo and APMI agreed to the amounts, and proposed that there be a time limit to receive the settlement checks and an enforcement mechanism under CCP Section 664.6. Id. at page 19. Southwest agreed to this in an e‐mail of March 9, 2021, but then stated that Mr. Goldstein had to confirm his clients' (Dr...

Excerpt: ... Defendant Lodi Memorial Hospital Association Inc dba Adventist Health Lodi Memorials' Motion to Strike Portions of the Complaint – MOOT. a) The Court finds the allegations of the First Cause of Action for Elder Abuse are insufficient at the pleading stage to state the challenged cause of action. In addition, the First Cause of Action for Elder Abuse is uncertain in that the Complaint does not distinguish between the two named defendants with r...

Excerpt: ...properly propounded Form Interrogatories, Set One and Requests for Production of Documents Set One constitutes misuse of the discovery process and warrants discovery sanctions. (Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913). The Court also finds, considering the length of time over which Defendant has willfully failed to comply with the Court's order (5 months), that lesser sanctions would be ineffective. (Department of Forestry &...

Excerpt: ...) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person. Government entity liability for premises liability and the dangerous condition of public property is governed by Government Code Section 835, which provides as follo...

Excerpt: ... submit admissible evidence demonstrating the existence of a material factual dispute preventing judgment thereon. Cross‐Complainant has failed to carry this burden. Specifically, the undisputed evidence demonstrates that Cross‐Defendants complied with the requirements of the parties' agreement with regard to the provision of general liability insurance covering Cross‐Complainant as an additional insured. Therefore, Cross‐Complainant cann...

Excerpt: ...sition Testimony and Request for Sanctions – DENIED, without prejudice; d) Cross‐Defendants Staffing Solutions, Inc. and Balance Staffing Workforce LLC's Motion to Compel Attendance of Deposition and Testimony of Gailann Stargardter – DENIED. (a) The motion demonstrates insufficient efforts to meet and confer with opposing counsel in good faith toward an informal resolution of the stated issues. (Code Civ. Proc. §2025.420(a).) Discovery is...

Excerpt: ...errupted possession, hostile to the true owner and under a claim of title for 5 years. (Sevier v. Locher (1990) 222 Cal App. 3d 1082 citing Gilardi v. Hallam (1981) 30 Cal. 3d 317, 321). The Court further finds that the defects in Plaintiff's pleadings are incurable at present as Plaintiff is no longer in possession of the subject property and the delinquent property taxes have been paid by Defendant. Defendant's demurrer is hereby accordingly su...

Excerpt: ...urt explicitly finds that Plaintiff Harpreet Dhaliwal's opposition to this motion to compel was unjustified. As evidenced by Plaintiff's provision of further responses to the requests for production on October 12, 2022, it is clear that Plaintiff's original responses were inadequate and not code‐ compliant. While the Court appreciates Plaintiff's willingness to admit as much and provide supplemental responses, where a motion to compel is necess...

Excerpt: ...five years of the seizure of the property. On October 19, 2021, the Court granted the People's discovery motions, including the Motion to Deem Requests for Admission admitted. Motion, Exhibit B. Pursuant to this Order, Mr. Cruz has admitted that the money at issue was furnished or intended to be furnished by a person in exchange for a controlled substance within five years of the date of its seizure, that the money is proceeds traceable to an exc...

Excerpt: ...ourt's jurisdiction with regard to party applications for reconsideration or renewal. (Code Civ. Proc., § 1008(c).) Second, the Court's inherent power to reconsider its own rulings and decisions sua sponte does not survive entry of judgment and finality. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181 [court loses jurisdiction to rule on a pending motion for reconsideration after entry of judgment and it is immaterial that the mo...

Excerpt: ...es a non‐ parent. …a trial court has the responsibility to protect the rights of a minor who is a litigant in court, and in this role the court has the inherent authority to make decisions in the best interests of the child, even if the parent objects. This judicial protection of minors encompasses a court's authority to select a guardian ad litem who is not the parent or general guardian. Williams v. Superior Ct. (2007) 147 Cal. App. 4th 36,...

Excerpt: ... contain new or different facts which could not with reasonable diligence have been presented at the trial of the action. The moving party must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. CCP Section 1008; Shiffer v. CVS Corp. (2015) 240 Cal. App. 4th 246, 255. Mr. Orozco states that the new evidence and facts include 15 confirmed documented instances of false and contradictory trial testimony, n...

Excerpt: ...g proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. The Motion was not timely filed by Project‐Mate, Inc. On September 13, 2021, Project‐Mate, Inc. filed a Request for Dismissal of the Cross‐Complaint it had filed on March 10, 2021. Even if Project‐Mate, Inc. could show tha...

Excerpt: ...ce of Motion, was filed on August 23, 2022. Counsel for Defendants declaration attaches exhibits that only unilaterally confirm an extension on the forty‐five (45) time limit to compel further responses applicable to both motions through July 28, 2022. Even then, a stipulation to extend the 45 day time limit “on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc...

Excerpt: ...1, Defendant shall accordingly provide further substantive responses to same. Plaintiff's request for further responses to Form Interrogatory 17.1 is hereby denied for failure to comply with California Rule of Court 3.1345(c)(5) Plaintiff did not include in the accompanying separate statement, Defendant's verbatim responses to Plaintiff's request for admissions. Monetary sanctions of $1460 are awarded against Defendant and his Counsel of record G...

Excerpt: ...CCP Section 386 and Rutter's Guide to Civil Procedure Before Trial, Ch. 2‐F (2019) at 2:470. The fact that plaintiff, by virtue of an attorney lien, may have a right to a portion of the $25,000.00, does not mean that plaintiff can simply deduct the amount it believes it has a right to before interpleading the remaining funds. The amounts which plaintiff and each defendant are entitled to must be determined by the Court. ...

Excerpt: ...n is DENIED as to Issue No.'s 1, 2, and 4, and GRANTED as to Issue No. 3. Defendants' Request for Judicial Notice is granted. Plaintiffs' Evidentiary Objections are sustained as to objections no.'s 2, 5, 10, 49, 55, 56, and 57, and are otherwise overruled. Defendants' Evidentiary Objections are sustained as to objection no.'s 1 and 2 and overruled as to objection no.'s 3 – 11. Issue No. 1 – At the time when the subject accident occurred, defe...

Excerpt: ...ion, within 15 days. (Code Civ. Proc. §§2030.290(b), 2031.300(b).) The Court further finds that Defendants are entitled to an award of monetary sanctions in connection with Plaintiff's failure to respond to the subject discovery, necessitating this motion. (Code Civ. Proc. §§2030.290(c), 2031.300(c), 2023.010(d), 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Therefore, monetary sanctions in the amount of $235 are awarded against Plaintiff,...

Excerpt: ...ering claim generally seen in a personal injury case. However, the Court is mindful of the law's protection of a plaintiff's privacy interest in records reflecting physical or mental conditions unrelated to the issues in the subject suit and of the Court's duty to balance the respective rights of the parties in this situation to reach a proper resolution of the issue. Therefore, the Court finds that the scope of the subject subpoena should be lim...

Excerpt: ...arbitration, based on the U.S. Supreme Court's holding in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. Therefore, the stay is lifted with regard to that portion of Plaintiff's PAGA claim and the motion is GRANTED in that respect. However, the issue of whether Plaintiff retains any ability to pursue a representative PAGA claim despite the existence of the arbitration agreement appears to be an open question under California law. Th...

Excerpt: ...es/officers of the entity Plaintiff, counsel for Plaintiff, percipient witnesses on essential disputed issues, and non‐retained expert witnesses on behalf of Plaintiff, the Court has concluded that the informed‐consent exception contained in California Rule of Professional Conduct 3.7 is inapplicable under the circumstances, due to the risk of prejudice to the defendants and to the integrity of the judicial process. In reaching this conclusio...

Excerpt: ... for Admission, Set One, within the next ten (10) days. The Court explicitly finds that Plaintiff Pauline Doan's opposition to this motion to compel was unjustified. If Plaintiff is indeed incapacitated and unable to respond to discovery (a fact which was not established by the evidence Plaintiff submitted in opposition to the motion), it is Plaintiff's counsel's duty to determine how best to advance Plaintiff's claims herein. But if Plaintiff ch...

Excerpt: ...20 and 22, and sustained as to No.'s 18 and 21. The liability of the Dragon defendants is based on whether or not the Dragon defendants can be liable as successors in interest to Vantage Trailer, Inc. Plaintiff's Response to Defendants' UMF No. 3. Defendants have shown that no issues of material fact exist which support a successor in interest claim. The Agreement called for Vantage Trailers to sell certain assets to Dragon Products related to th...

Excerpt: ...e Court and found to be insufficient in connection with Cross‐Defendants' demurrers to the original and First Amended Cross‐Complaints. Additionally, the Court notes that the motion is procedurally deficient in that it fails to comply with the requirements of Cal. Rules of Court, Rule 3.1324. Lastly, Cross‐Complainants fail to explain the reason for the delay of over three years since the filing of the original cross‐complaint in April 20...

Excerpt: ... Inc. v. Moriana upon the Court's finding of a valid enforceable arbitration agreement between the parties. (Viking River Cruises Inc. v. Moriana (2022)142 S.Ct. 1906). Accordingly, Plaintiff's individual PAGA claim is hereby ordered to arbitration. However, the Court finds that the issue of whether Plaintiff retains any ability to pursue a representative PAGA claim despite the existence of the arbitration agreement appears to be an open question...

Excerpt: ...ath, 4) negligent infliction of emotional distress, and 5) violation of patient's rights. Defendant's moving separate statement sets forth thirty‐nine (39) undisputed material facts (UMFs) – many of them repeated for each cause of action – focusing on two legal issues – first, that the Defendant met the applicable standard of care, and second, that Defendant did not cause the injuries Plaintiffs complain of in their complaint. Defendant a...

Excerpt: ...onally, reconsideration of the denial of a summary judgment motion cannot be sought on the 10‐ day notice period set forth in CCP Section 1008, because this would bypass the procedural protections of CCP Section 437c afforded to parties opposing summary judgment, such as the requirement of 75 days' notice. Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal. App. 5th 239, 243. Finally, the Court finds that it did not err in denying de...

Excerpt: ... GRANTED, and unopposed. Motions (a) – (b): The Court finds that each motion was properly noticed and timely served, that no opposition was filed by Plaintiff and that no responses were timely served by Plaintiff. Accordingly, Plaintiff is ordered to serve complete and verified responses, without objections, within fifteen (15) days of this Order. Motion (c): The Court finds that this motion was properly noticed and timely served, that no oppos...

Excerpt: ...state cannot bring suit on its own but must proceed through the appropriate trustee, executor, or administrator. (See, e.g. Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344.) Moreover, as to the claims based on the subject contract (deed of trust), the Homeowner's Bill of Rights, and the foreclosure sale, the individual plaintiffs have failed to allege sufficient facts demonstrating their capacity to assert these claims herein. As Plaintiffs ...

Excerpt: ...etween Plaintiffs and Central Valley Nissan that Defendant may rely on the doctrine of equitable estoppel to compel arbitration between Plaintiffs and Defendant. Proceedings herein are accordingly stayed pending completion of arbitration. Defendant's Request for Judicial Notice is GRANTED. The Court acknowledges that Defendant did not demand arbitration pursuant to code, however, resolving the motion based on this point would be a fruitless endea...

Excerpt: ...e names of and information related to Defendant's former pupils and employees. Defendant's students are further protected from the disclosure of said information by the California Education Code §§ 49075 and 49077. Plaintiff's motion for further responses to Form Interrogatories, Set 1, is GRANTED as to 12.2, 12.3, 12.6, 12.7, 14.2 and 17.1, and DENIED as to 12.4 and 12.5 on the grounds of work product and attorney client privilege. Further, an...

Excerpt: ...rovided. Therefore, the request for an order compelling the same is DENIED, as MOOT. With regard to the request for sanctions, however, it appears that Plaintiffs' failure to comply with the statutory provisions for responding to the subject discovery necessitated the instant motion and Plaintiffs have not demonstrated substantial justification for their failures in that regard. Therefore, the Court finds that Defendant is entitled to an award of...

Excerpt: ...ended Cross‐Complaint of Nirmal Singh and Ks Chandi; b) Defendants Nirmal Singh, Prabhjot Singh, Matthew Bradford, Marc Robinson & Robinson Bradford LLP's Special Demurrer to Causes of Action 1 Through 8; c) Plaintiffs Kevin Doan, Pauline Doan and Harpreet Dhaliwal's Motion to Quash Subpoena to First American Title – This is an action for corporate mismanagement brought by the majority shareholders against a corporate officer (and minority sh...

Excerpt: ...bridge's Further Responses Requests for Admissions, Set One and Request for Sanctions – GRANTED, in part; DENIED, in part, as MOOT. 1. The Court finds the substance of the dispute over Plaintiff's responses to be moot, based on Plaintiff's service of verified further responses herein. To the extent that Defendant believes such further responses remain insufficient, meet and confer efforts should be undertaken and Defendant may seek judicial int...

Excerpt: ...lure to meet and confer in good faith; Request for Monetary Sanctions in the Amount of $690.00; c) Plaintiff Doctors Medical Center of Modesto, Inc.'s Motion to Compel Further Responses from Defendant, Tiger Lines, LLC to Special Interrogatories, Requests for Admission, Requests for Production of Documents, and Form Interrogatories, Set One; Request for Monetary Sanctions in the Amount of $6,200.50 – DROPPED on the Court's own motion due to the...

Excerpt: ...he delegation clause require the arbitrator to determine which of the Plaintiffs' claims are arbitrable? With regard to the first issue, Defendant has established that decedent Olivia Deloach signed the arbitration agreement on February 13, 2020. The supplemental declarations of Cristina Lewis and Ashlee Gilliam, combined with the original declaration of Deanna Brummell, establish that the decedent's electronic signature was generated a) in the p...

Excerpt: ...tigate matters which pertain to the underlying Alameda County claims. Specifically, Intervenor cannot have a trial of any sort in this county in order to recover as a state representative under PAGA. This Court cannot – and will not – rule on those claims, or take any action which purports to interfere with Alameda County's jurisdiction. ...

Excerpt: ...ration, based on the U.S. Supreme Court's holding in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. The Court further notes that Plaintiff does not appear to oppose the application of Viking River Cruises, supra, with regard to the individual claim. Therefore, the motion is GRANTED in that respect. However, the issue of whether Plaintiff retains any ability to pursue a representative PAGA claim despite the existence of the arbitrati...

Excerpt: ...d the Decedent Shirley Strickland while she received treatment from them. Further, Defendants' evidence establishes that a family practice physician and a physician's assistant cannot be held to the same standard of care as applicable to cardiology experts. The Court further finds that Defendants have established the absence of a triable issue of material fact regarding a crucial element of Plaintiff's medical malpractice claim against Defendants...

Excerpt: ...Chowdhury, which outlines a rule for out‐of‐ commission stoplights. In this case, there was a power outage whose breadth is disputed, but there is no means. Plaintiff has the burden to identify new facts that would cure the defect. The Opposition alleges that the only traffic signals that were inoperable were at the subject intersection but power was working for the other lights in the neighborhood and houses. Regardless of the accuracy of th...

Excerpt: ... same damages as the claim for breach of contract, with the result that no separate claim has been sufficiently stated. (See, e.g. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) Therefore, the demurrer is SUSTAINED with regard to this cause of action; however, the Court will grant Plaintiff leave to amend the pleading in this regard. With regard to the Third Cause of Action for Common Counts, the Court f...

Excerpt: ...eacted negatively because he has had difficult experiences with people who represent themselves. Petitioner goes to great lengths to disparage counsel both in his reply brief and in e‐mails. None of this assists. The Court does not have jurisdiction in this case to stop a party from being represented by the attorney of its choice. Petitioner is strongly advised in the future to make an administrative complaint about an attorney or not rather th...

Excerpt: ...r, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Emphasis added.) See also Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 190 (an appeal from the denial of a motion to compel arbitration automatically stays all further trial court proceedings on the merits). Based on the Court's review of the facts here, the appeal involves “matters embraced in or affe...

Excerpt: ...ndants and each of them failed to verbally discuss the risks of the left eye surgery with Plaintiff, or otherwise clearly communicate and/or ensure that Plaintiff understood the associated risks, benefits, and alternatives.” Plaintiff suggests this is sufficient, but it does not follow that Plaintiff was not given a clear written waiver which Plaintiff understood and agreed to. Plaintiff avers that he did not understand what was occurring, but ...

Excerpt: ... complaint states Defendant sprayed on April 3, 2020. On the other hand, Plaintiff's Motion for Summary Judgment and the exhibits and evidence submitted therewith state Defendant sprayed on April 2, 2020. This material contradiction in the moving papers means Plaintiff has not met his burden to establish no material disputes of fact such that summary judgment or summary adjudication would be appropriate. Even if Plaintiff had met his moving burde...

Excerpt: ... to meet his burden herein. His proffered evidence fails to identify any material factual disputes as to whether the defendant facility had a duty to prevent Plaintiff's voluntary departure from the premises or to prevent his apparent suicide attempt on the night in question. Therefore, Plaintiff has not demonstrated a material factual dispute sufficient to overcome the moving defendants' evidence on these issues. Plaintiff's objections to Defend...

Excerpt: ...its, the Court finds that Defendants, as the moving parties, met the initial burden of establishing prima facie entitlement to judgment based on the submitted evidence. The burden then shifts to Plaintiff to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiff has failed to meet his burden herein. His proffered evidence fails to establish any po...

Excerpt: ... Code §47 under the auspices of Code of Civil Procedure §425.16. The burden then shifts to Defendant and Cross‐Complainant CAO to demonstrate the probability that it will prevail on the merits of the subject causes of action. The Court finds that CAO has failed to meet its burden particularly as there is no evidence that Lucky 8 disseminated the email to other than its customers. Therefore, the Court finds the Cross Complaint filed by CAO sha...

Excerpt: ...ky Stores, Inc. (2000) 79 Cal.app.4th 1081,1086.) There are thirty‐seven issues for adjudication which all boil down to whether each allegation in the complaint were sufficiently alleged in the LWDA Notice. The first three issues address the entirety of the PAGA cause of action. The remaining issues address a “claim within his PAGA cause of action.” California Code of Civil Procedure 437c allows summary adjudication “only if it completely...

Excerpt: ...o two parts, sending one part to arbitration and the other to dismissal. On a motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a prepon...

Excerpt: ... PERB. (UMF #.) Ms. Trevethan was Plaintiff's direct supervisor and Barney Gordon was a member of the Board of Trustees viewed as Ms. Trevethan's supervisors. (UMF 4.) Therefore, there remains a triable issue of material fact as to whether Defendants were “supervisory employees.” (See, Hartnett v. Crosier (2012) 205 Cal.App.4th 685; see also, Caldecott v. Sup. Ct. (2015) 243 Cal.App.4th 212, 223.) The Tort Claim does not have to identify caus...

Excerpt: ...purposes of ruling. Given that there is no evidence, the Court cannot entertain a Motion for Reconsideration. The Represented Defendants allege that they have information indicating the subject emails were available to Plaintiff prior to the last hearing, and that they are in an exhibit. The Court does not have the exhibit. The Court notes that the declaration and motion are legally and factually frivolous, and appear to be done for the purposes ...

Excerpt: ...o sufficiently state the elements of intentional infliction of emotional distress to support Nataley's claim. In addition, it appears to the Court that Plaintiffs' claims for harassment and Ryta's claim for intentional infliction of emotional distress are not viable as a matter of law. If, however, Plaintiffs believe the pleading can be amended to state viable claims in this regard, they shall also be prepared to advise the Court of the authoriti...

Excerpt: ...ion suit, petitioners and similarly‐situated electric customers claim that Modesto Irrigation District built a sizable electric slush fund and – instead of reimbursing electric customers for the surplus – is surreptitiously using the electric slush fund to cover serious losses from its irrigation customers. Petitioners contend (1) that Respondent's practice of robbing Electric Peter to cover Irrigation Paul's debt is an unauthorized tax on ...

Excerpt: ...nce that a valid arbitration agreement exists. The arbitration agreement was signed electronically on November 5, 2020. Ms. Brummell's Declaration indicates it was signed when Gloria Kelley was admitted to the facility. However, the Complaint and Gilliam declaration indicate the admission was actually on October 29, 2020. Michael Kelley denies signing the document. Assuming the document was signed by Michael Kelley and that Ms. Brummell's declara...

Excerpt: ...ount of $1,050.00 – GRANTED, and unopposed; c) Defendant, United Parcel Service's Motion to Compel Responses, without Objections, to Requests for Production of Documents (Set One); Request for Sanctions against Plaintiff Christine Cole as Guardian Ad Litem for Tanner Cole and Sierra Cole in the Amount of $1,050.00 – GRANTED, and unopposed. a) The Court finds that Plaintiff entirely failed to respond to the subject discovery and all objections...

Excerpt: ... but want to delay a permanent injunction based on attempts at compliance. At this stage, whether the attempts at compliance are in good faith or not, they simply have not complied with a court order that they stipulated to. Notably, Defendants refused inspections, did not file timely applications, and did not meet all of the conditions of the order. Defendants' refusal to allow inspections was a direct violation of the order. For example, after ...

Excerpt: ...troversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a preponderance of the evidence. Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 244; Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 967. Neither side disputes the existence of an agreement to arbitrate between plaintif...

Excerpt: ...le Dam Blvd. E in Oroville. (Undisputed Material Fact [hereinafter, “UMF”] 1 and 11; Complaint at 4‐5.) Defendant Wright applied for a position with Foodmaxx on April 2, 2016. (Ex. F.) He denied any felonies and had prior work experience without any adverse employment actions. (Id.; UMF 5). He had not been in any physical altercations prior to the subject incident. (UMFs 4, 22.) He was a meat clerk that did not include any physical altercat...

Excerpt: ...ntrols. Defendant suggests the Family Law Court executed a void order. As Kerns notes, I have no authority to reach the issue. The order in place is absolutely binding on me, and I cannot reach a contrary conclusion. If jurisdiction were only by stipulation, I would be free to make determinations, but in this case jurisdiction has been conferred by court order. The Court continues the case to give Defendant the opportunity to pursue whatever reme...

Excerpt: ...ba Alexander Cohen Hospice House's Demurrer to Plaintiff's First Amended Complaint – OVERRULED, part; SUSTAINED, in part, with leave to amend. a) With regard to the First Cause of Action for Elder Abuse and/or Neglect, the Third Cause of Action for Wrongful Death, and the Fifth Cause of Action for Violation of Patient's Rights, the Court finds the allegations sufficient at the pleading stage to state the challenged claim. Therefore, the demurre...

Excerpt: ... Watsonville, California. The operative pleading is the First Amended Master Complaint. Before the Court this day is a demurrer by all defendants to all eight (8) causes of action set forth in the operative pleading on the ground that none of them include facts sufficient to constitute a cause of action (CCP §430.10(e)). This type of demurrer only succeeds if there is no cognizable theory for relief of any kind, regardless of the labels and theo...

Excerpt: ...tration under CCP §1281 et seq, the moving party has the burden to demonstrate (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Thereafter, the burden shifts to the opposing party to show (a) the right to compel arbitration has been waived, (b) grounds exist for rescission of the agreement, or (c) some overriding California policy justifyi...

Excerpt: ...eclaration is insufficient to authenticate the subject agreement. In addition to the deficiencies noted above, the Court finds that an order compelling arbitration in this instance would create the possibility of conflicting rulings on common factual and/or legal issues involved in Plaintiffs' action against the other defendants, as the allegedly arbitrable claim arises out of the same transaction(s) as the non‐arbitrable claims. Therefore, ass...

Excerpt: ...nt may at any time apply to the court for an order requiring the plaintiff to furnish an undertaking to cover a future award of litigation costs. See Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428; Yao v. Superior Court (2002) 104 Cal.App.4th 327, 329. The motion must be supported with evidence demonstrating “a reasonable possibility” that the moving defendant will prevail, as well as a good faith estimate of the costs/fees previously i...

Excerpt: ...0, 21, 23, and 26 are OVERRULED. Objections 7, 8, 9, 15, 16, 18, 19, 22, 24, 25, 27, 28, 29, 30, and 31 are SUSTAINED. Notably, Defendant's objections to the attempt to bootstrap this case and the Wright case are granted. The Court will not consider the Trial Brief in the Wright matter, as does not meet the requirements for a judicial admission. A statement made to gain an advantage in a prior case cannot be walked back later; here Defendant made...

Excerpt: ...f all this, this Court concluded that a discovery referee for some aspect of this case is needed. This Court ordered both sides to submit the name of someone they would propose to serve as discovery referee. This Court selected defendant's proposal (Attorney Michael Kronlund), largely because he had a lower hourly rate (see Minute Order dtd 05/13/22). Before the Court this day is a motion by plaintiff to reconsider that order. Central to plaintif...

Excerpt: ...s to the Third Cause of Action for Harassment. The Court addresses the issues in numerical order. Issue #1 [First Cause of Action]: While discrimination claims are subject to a three‐step burden‐shifting paradigm, establishing a prima facie case is not particularly onerous. (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 354‐355.) Here, Plaintiff is Laotian/Mien/Asian, and therefore, within a protected class. He was treated differently f...

Excerpt: ... to both. On or about 03/09/22, plaintiffs caused to be served upon Alliant Insurance Services a subpoena for the production of records containing insurance applications from, and communications with, defendants regarding any insurance coverage from 03/01/10 to the present. Although the subpoena called for the production to occur at 8:00 a.m. on 03/28/22, it included two different locations for where the records were to be produced (compare Box 1...

Excerpt: ...re and treatment provided to an individual with schizo‐ affective disorder, who is reportedly subject to an LPS conservatorship. The operative pleading is the original complaint filed 05/21/21, and consisting of the following seven causes of action: unfair practices; breach of the implied covenant of good faith and fair dealing; Unruh; negligence; FEHA discrimination; defamation; and privacy violations. The pleading was filed ostensibly by Alla...

Excerpt: ...ust establish that the employee committed a tort within the scope of employment. (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 618.) Pursuant to the well‐known “coming and going rule,” an employee's commute to and from work is not considered to be within the scope of employment unless a specific exception applies. (Anderson v. PG&E (1993) 14 Cal.App.4th 254, 258.) CEI's employees, such as Plaintiff and Defen...

Excerpt: ... part and DENIED in part. In order to be code‐compliant, Plaintiff must represent that a “diligent search and a reasonable inquiry has been made in an effort to comply with the demand.” Code of Civil Procedure section 2031.230. As Plaintiff's response does not include this representation, Plaintiff shall amend it accordingly. As for the Defendant's argument that Plaintiff didn't identify anyone she “believes” might possess information r...

Excerpt: ... by Plaintiff herein. Therefore, Defendant has failed to demonstrate the absence of disputed factual issues with regard to the elements of Plaintiff's claim. (Code Civ. Proc. §437c(c).) Assuming arguendo that Defendant had submitted sufficient evidence to shift the burden to Plaintiff to produce admissible evidence demonstrating the existence of a triable issue of material fact (Code Civ. Proc. §437c(p)(2)), the Court finds that Plaintiff has m...

Excerpt: ...r's Request for Judicial Notice of a 2012 declaration is DENIED. First of all, the Court orders the parties to stop the ad hominem attacks. Intervenor wants the Court to take judicial notice of a press release critical of Plaintiff's firm. Plaintiff notes, entirely correctly, that this is grossly inappropriate, and follow up by asking for judicial notice of a 2012 declaration which may well be critical of Intervenor's lawyers but which the Court ...

Excerpt: ...esto. Plaintiff opposes the request for leave, and requests sanctions in relation thereto. Pursuant to CCP §428.10, a party against whom a cause of action has been asserted may file a cross‐ complaint to include any cause of action he has against a person alleged to be liable thereon, if the cross‐ claim (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) assert...

Excerpt: ... GRANTED, and unopposed. In their moving pleadings, Defendants make a prima facie showing that they are entitled to judgment against Plaintiffs as a matter of law. The Court GRANTS the Defendants' request for judicial notice. Based on the Declaration of Denise Billups‐Slone, the exhibits attached thereto, including the Declaration of Dr Justin Birnbaum, and the First Amended Complaint filed on June 13, 2019, as well as the other pleadings the C...

Excerpt: ...isqualify Attorney Thomas E Lewis; d) Defendant Stanislaus Regional Housing Authority, Barbara S Kauss, Bernadette Reynolds and Mildred C Collings' Demurrer and Motion to Strike to Plaintiffs' Second Amended Complaint for Damages – a) STRICKEN. The purported removal was void. The Court sets aside the clerical designation of removal; it was void ab initio. b) As no good cause has been shown, Plaintiff Magdaleno is held in contempt for violation ...

Excerpt: ...GRANTED. There are no allegations of any written contract signed by both Alston and Northern California Nail Company by which the latter agreed to indemnify the former. (Nielsen Constr. Co. v. Int'l Iron Prod. (1993) 18 Cal.App.4th 863, 869: “The language of section 3864 clearly requires execution of the written agreement (i.e., signatures of all parties) before the injury.”) Alston has requested leave to amend to allege the existence of a wr...

Excerpt: ...istress), neglect and abandonment by failing to bring plaintiff food and leaving him in the shower (causing emotional distress), and pharmaceutical abuse (causing plaintiff to fall in the shower). Before the Court this day is a defense demurrer and motion to strike, directing at most of the charging averments in the operative Fifth Amended Complaint. Pertinent Background Facts On or about 02/15/20, plaintiff was transferred from University of Cal...

Excerpt: ... agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a preponderance of the evidence. Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 244; Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; Martinez v. Bar...

Excerpt: ...;  on 06/24/17, during a recreational ride within the Oceano Dunes in San Luis Obispo, plaintiffs Julio and Christian sustained serious injuries when the Hisun 1000 roll cage collapsed upon them. Before the Court this day is an unopposed motion to continue trial, and a demurrer to L&K's cross‐ complaint against Hisun for express contractual indemnity and declaratory relief. As to the former, Hisun's motion to continue trial, and to trail all...