Excerpt: ...ecifically, Defendant's purported evidence consists, in part, of inadmissible hearsay in the form of unauthenticated credit report documents. Defendant has failed to demonstrate how such documents might fall within a recognized hearsay exception. Moreover, even if the Court were to consider the proffered reports, the information contained therein does not definitively establish the fact asserted by Defendant, i.e. that Plaintiffs obtained the cre...

Excerpt: ... by Ms. Weese pursuant to the power of attorney executed by Ms. Kraus in 2015, the agreement does not demonstrate unanimous action by both of Ms. Kraus' designated representatives (Prob. Code §4202(b)) and Defendant submits no evidence that unanimous action was not required. (Prob. Code §4202(d).) The Court further notes Defendant's acknowledgement that, in any case, the alleged arbitration agreement does not apply to Plaintiffs' wrongful death...

Excerpt: ... review of the papers and supporting evidence submitted in conjunction with both petitions, the Court finds that no statutory grounds exist to vacate the arbitration award issued on 10-8-19. (Code Civ. Proc. §1286.2.) While the Court recognizes that the determination of the arbitrator operates to deprive Plaintiff of the ability to pursue his statutory employment claims on the merits, the Court has reviewed the arbitrator's decision and finds it...

Excerpt: ...ted by substantial evidence. Plaintiffs correctly proffer that whether the design of the accident intersection was dangerous is beyond the common lay understanding under Evidence Code §801(a) and therefore properly a matter for expert testimony. At trial, Plaintiffs' expert, Dale Dunlap, rendered his opinion that the intersection in dispute was in a dangerous condition at the time of the accident. Mr. Dunlap is a Traffic Engineer with over thirt...

Excerpt: ...0, 685.080.) Therefore, as a foundational matter, the scope of the motion is impermissibly broad to the extent it seeks recovery of fees and costs incurred prior to 11-17- 17. While Defendant does not dispute the recoverability of reasonable fees and costs in connection with Plaintiffs' post- stipulation enforcement efforts, Plaintiffs have not provided sufficient information for the Court to calculate the lodestar figure, which is fundamental to...

Excerpt: ...tion designed to protect the public, and the State remains the real party in interest. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4 th 348, 381.) Therefore, a pre-dispute agreement to such claims to arbitration cannot be enforced without evidence of the State's consent to such terms. (Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5 th 602 ...

Excerpt: ...can Arbitration Association, … or any other organization to conduct the arbitration subject to our approval.” Plaintiff contends that this sentence makes AAA one of her choices, and that 2WIN's approval is required only if she chooses an entity other than AAA. Defendant contends that the sentence gives it absolute veto power over any choice Plaintiff might make. The Court concludes that the sentence is ambiguous, and therefore should be const...

Excerpt: ...s Request for Judicial Notice. Defendants' Demurrers No. 1 and No. 2 are OVERRULED. Defendants' Demurrer No. 3 is SUSTAINED, with leave to amend, for failure to state facts sufficient to constitute a cause of action. However, it appears Plaintiff can amend this cause of action to cite to the correct Labor Code Section – which does provide her with a private right of action. (Labor Code Section 233.) Defendants' Demurrer No. 4 is SUSTAINED, with...

Excerpt: ...ing the First Cause of Action for Battery and the Fifth Cause of Action for Public Nuisance. (Code Civ. Proc. §430.10€.) With regard to the battery claim, the Court finds the allegations insufficient to support the element of intent in this context. With regard to the claim for public nuisance, the Court finds the allegations insufficient to establish the “public” nature of the claim. Plaintiff is granted 20 days leave to amend in this reg...

Excerpt: ...preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settlement of...

Excerpt: ...he licensing requirements, therefore allowing his action to proceed. (Bus. & Prof. Code §7031(e).) Specifically, the Court finds that, at a minimum, Plaintiff has demonstrated material issues of fact with regard to whether his conduct with regard to his license in 2018 was reasonable, given the totality of the alleged circumstances surrounding the interaction between the parties. (See, e.g., Plaintiff's Additional Facts 57-62, 71-75.) The partie...

Excerpt: ...s order granting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the propo...

Excerpt: ...ue of material fact. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiff has failed to meet his burden in this regard. Specifically, the undisputed facts establish that the written lease agreement and subsequent amendment set forth specific terms and conditions for Plaintiff's effective exercise of the purchase option at issue, that the parties agreed thereto, and that Plaintiff failed to fulfill such terms with regard to the subject p...

Excerpt: ...r burden in this regard. Specifically, Plaintiffs have failed to demonstrate facts establishing that Defendant had actual or constructive knowledge of the alleged latent defect on the premises. Moreover, the law does not support Plaintiffs' theory that notice was imputed to Defendant in connection with alleged defects in the original design and/or construction of the premises under the circumstances in this case. (RSB Vineyards, LLC v. Orsi (2017...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ...r burden in this regard. Specifically, Plaintiffs have failed to demonstrate facts establishing that Defendant had actual or constructive knowledge of the alleged latent defect on the premises. Moreover, the law does not support Plaintiffs' theory that notice was imputed to Defendant in connection with alleged defects in the original design and/or construction of the premises under the circumstances in this case. (RSB Vineyards, LLC v. Orsi (2017...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... appropriately submitted within the timeline established by the agreement, subject to the agreed modification by the parties in the interest of allowing for extended informal discussions. Respondent's argument with regard to the viability of Petitioners' underlying claim is akin to a statute of limitations defense requiring inquiry into the substantive merits of the matter. Such determination falls within the purview of the arbitrator, not the co...

Excerpt: ... motion to strike the Plaintiff's prayer for punitive damages is GRANTED, without leave to amend. Pursuant to Government Code section 818, public entities in California are immune from liability for punitive damages. Plaintiff has leave to amend the second cause of action of her Complaint as noted and her First Amended Complaint shall be filed not later than February 25, 2019, pursuant to California Rules of Court, rule 3.1320(g). ...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... appropriately submitted within the timeline established by the agreement, subject to the agreed modification by the parties in the interest of allowing for extended informal discussions. Respondent's argument with regard to the viability of Petitioners' underlying claim is akin to a statute of limitations defense requiring inquiry into the substantive merits of the matter. Such determination falls within the purview of the arbitrator, not the co...

Excerpt: ...se inappropriate.” Additionally, once the Defendants' examiner identified the potential tests that he might employ, there was no requirement that he identify in advance all of the specific tests he would actually conduct, since the ultimate selection depends upon the Plaintiff's presentation of his injuries during the examination. ...

Excerpt: ...exas for them), the “non-refundable” costs might have been avoided. Equally, Defendant's counsel could have communicated his unavoidable conflict a few days earlier – which may have made a difference with regard to the Plaintiffs' “non-refundable” costs. The miscommunication related to the November 9, 2018, fax is immaterial to a consideration of sanctions – but just another example of the lack of effective communication between the p...

Excerpt: ...s' vision of the crosswalk – is transitory and has nothing to do with the design of the crosswalk. This is insufficient to allege a dangerous condition of public property. See e.g. Erfurt v. The State of California (1983) 141 Cal.App.3d 837. In Erfurt, Plaintiff alleged physical characteristics of the freeway in question were “dangerous” including: (1) the three-lane freeway split into a “Y,” (2) a concrete pillar that supported an over...