Excerpt: ...r and motion to strike directed at the First Amended Complaint, as well as the continued hearing on defendant's motion to compel further responses to special interrogatories. The discovery motion was continued to this date to clear the confusion regarding an opposition brief. In the interim, the parties have filed two more discovery motions, both set for hearing on 06/30/22. For the convenience of the parties, and since the scope of discovery mig...

Excerpt: ...e class allegations, leaving just her PAGA claim. What remains, as such, of this motion is whether the PAGA claim is subject to arbitration. First, defendant did not ask this Court to compel arbitration of the PAGA cause of action (see Notice 2:5‐6 and MPA 1:19‐24). Second, as both sides readily concede, the established law here in California is that PAGA claims are not subject to an aggrieved employee's private agreement with an employer to ...

Excerpt: ... prayer for punitive damages. The issue is whether the third cause of action, to which the prayer for punitive damages attaches, is viable in light of the economic loss rule. The economic loss rule bars most tort claims for purely economic losses covered by a contract, but does not apply to tort claims based on a theory that the defendant actually said something to the plaintiff at or about the time of contracting that was materially false. This ...

Excerpt: ...s unhelpful to the Court reaching a decision on the merits of the issues. In this case, the parties appear to agree that the Court must engage in a weighing test to make determinations on what should be released. Defendants' procedural objections as to a meet and confer and separate statement requirement are incorrect. As to the meet and confer effort, Code Civ. Proc. 1985.6(f)(1) relating to a motion to quash does not include any such requiremen...

Excerpt: ...nt Nirmal Singh – for a derivative undertaking of $50,000. Regarding plaintiffs' motion for clarification, this apparently stems from the following statement contained in this Court's 09/01/21 minute order: “the only way to streamline what remains of these complex disputes post‐arbitration is to bring all of the remaining matters under one metaphorical roof in the form of a master complaint by Doan et al under the lead case 684071, with aba...

Excerpt: ...tempted to identify additional available sources of information (such as family members, co‐workers, neighbors, property records, etc.) for use in accomplishing service by another method. (See, e.g. Watts v. Crawford (1995) 10 Cal.4 th 743, 749, fn. 5.) ...

Excerpt: ...ritten complaint to the governmental agency complained against and having that complaint acted upon by the allegedly offending agency. Additionally, as to all Judicial Defendants, the demurrer is denied as the claims are for acts allegedly committed duding the exercise of judicial discretion and are barred under the doctrine of judicial immunity. Any challenge to the judicial actions of Judicial Defendants must be brought as writs or appeals. The...

Excerpt: ... Complaint – GRANTED, and unopposed. (a) With regard to the single cause of action set forth in the First Amended Complaint, the Court finds that the factual allegations are sufficient, at this stage, to state a cause of action based on the negligence of school personnel and resultant vicarious liability on the part of the District pursuant to Gov't. Code §815.2. (See, e.g. C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861.) ...

Excerpt: ...ction with the Third Cause of Action for Breach of Due Process Rights arises out of protected activity, i.e. the exercise of their constitutional rights in connection with their participation in the writ proceedings previously before this Court. The burden then shifts to Plaintiff to demonstrate the probability that he will prevail on the merits of the subject cause of action. The Court finds that Plaintiff has failed to meet that burden with reg...

Excerpt: ...pproval. 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.) The class is conditionally certified for purposes of settlement and this matter is therefore d...

Excerpt: ...ngh – GRANTED, and unopposed; d) Defendant's Motion for Order Establishing Admissions and Monetary Sanction to Plaintiff Bikrant Singh ‐ GRANTED, and unopposed; e) Defendant's Motion to Compel Responses to Special Interrogatories, Form Interrogatories, and Monetary Sanction to Plaintiff Sati Singh ‐ GRANTED, and unopposed; f) Defendant's Motion for Order Establishing Admissions and Monetary Sanction to Plaintiff Sati Singh ‐ GRANTED, and ...

Excerpt: ...c)(1)(B)(ii).) Therefore, the motion is GRANTED on that basis at this juncture, without reference to Defendants' additional arguments about the sufficiency of the allegations supporting the asserted claims, and without prejudice to such arguments being asserted in connection with any future challenges to the same, if appropriate. The Court grants Plaintiffs leave to amend the pleading to attempt to assert additional facts supporting their allegat...

Excerpt: ... Motion to Strike Portions of First Amended Complaint; e) DMC Defendants' Demurrer to First Amended Complaint; f) Hospitalists of Modesto Medical Group Inc., Arun Monoharan MD, and Li Huang, MD's Demurrer to Plaintiff's First Amended Complaint – After thorough review of the operative pleading in this case, the Defendants' special motions to strike, the Plaintiff's oppositions thereto, as well as the relevant statute (CCP Section 425.16) and cas...

Excerpt: ...bd. (c), against Plaintiff in the Amount of $660.00 – GRANTED, in part, and unopposed. a) Based on the information set forth in the moving and reply papers, and in the absence of opposition, the Court finds that responses to the subject discovery have now been served and the request for an order compelling the same has been rendered MOOT. However, the Court finds that Defendants are entitled to an award of monetary sanctions in connection with ...

Excerpt: ... appellate courts reaching different conclusions. Those cases, Turrieta v. Lyft and Moniz v. Adecco USA Inc., both appear carefully considered. For background, PAGA actions are a dispute between the state and the employer, with the aggrieved employee effectively deputized to pursue the case on behalf of the state. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4 th 348.) Turrieta v. Lyft (2021) 69 Cal. App. 5 th 955 (review grant...

Excerpt: ...chael C. Kronlund is appointed as referee for all purposes related to discovery in this action. Mr. Kronlund's address and telephone number are as follows: Quinn | Kronlund, LLP, 3439 Brookside Road, Suite 207, Stockton, CA 95219; (877) 943‐3955. 2. The following exceptional circumstances require this appointment: The parties' continual pursuit of numerous, time‐consuming motions related to discovery issues throughout the pendency of the matt...

Excerpt: ...38(c)(1)(B)(ii).) Moreover, the Court does not believe that any reasonable possibility for amendment exists which would result in viable claims being asserted with regard to these issues. Therefore, the Motion is GRANTED without leave to amend as to the Second, Third, and Seventh causes of action in the Complaint. The Court also finds that the Complaint fails to state facts sufficient to constitute the First, Fourth, Fifth, Sixth, Eighth and Nint...

Excerpt: ...elling Plaintiff, Thomas Monaco to (1) Respond to Demand for Production, Set No. One; and (2) Pay Costs and Sanctions in the Amount of $504.00 –GRANTED, and unopposed. a) The Court finds that Plaintiff entirely failed to respond to the subject discovery and all objections are waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Defendant is entitled to an order compelling Plaintiff to provide verified responses, without objection, within 15 da...

Excerpt: ...n this matter and does not file any opposition to the Plaintiff's application for writ of possession. Additionally, Plaintiff caused the clerk to enter Defendant DTL Logistics Inc.'s default on 4/21/22. Based on its review of the Plaintiff's application, the declaration filed in support of the application and the operative complaint in this matter, the Court finds Plaintiff has established the probable validity of its claim to possession of the p...

Excerpt: ... public use and/or not necessary. Although there are instances in which a client list is proprietary, the Court finds that any such concerns are adequately protected by the stipulated protective order in place in this case. Therefore, the Motion to Compel Further Responses to Special Interrogatory Numbers 1, 23, 24, and 27 is GRANTED. Further responses are due within twenty (20) days of the Court signing this Order. The Burchell Nursery, Inc. see...

Excerpt: ...nes associated with new tax liens incurred from 2018 forward. Motion to augment the judgment is DENIED without prejudice. Although the Judgment entered on 01/25/12 indicates that it “may be amended nunc pro tunc to include any and all additional [fees/fines] for the 2010/2011 and subsequent tax years” (see Para 5, emphasis added), this was a default judgment and the operative pleading does not include any claim for debts that accrued from 201...

Excerpt: ...approval and the subsequent order revising the same pursuant to the parties' stipulation. 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 ap...

Excerpt: ... Court this day are two plaintiff motions for order compelling further responses to Special Interrogatory Nos 14, 25, 40‐ 45, 51‐63, 65, and further responses to Document Production Nos 1‐3, 9, 13‐16, 17, 31, 37‐78, 84‐87. The motions are GRANTED in part, and DENIED in part. Regarding the Special Interrogatories, while the defendant is correct that – to some extent – these motions (like many in the lemon law field) are an exaltati...

Excerpt: ...ion for final approval of the settlement. The gross settlement amount (“GSA”) is $225,000.00, which is intended to cover 149 class members. This represents an average payout of just under $800.00. This is a non‐reversionary settlement (meaning nothing goes back to the defendant). Based on the whole of the record, this Court concludes that the gross settlement amount is fair and reasonable in light of the pertinent factors to consider. See J...

Excerpt: ... terms of that settlement, which this Court subsequently confirmed on 12/17/21. There is a genuine concern regarding this Court's continued jurisdiction to resolve this motion in light of plaintiff's dismissal with prejudice entered 11/12/21, Victoria's failure to personally request jurisdiction reserved, and the previously pending appeals. See Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 916‐ 919; Cunningham v. Mag...

Excerpt: ...ty as to the order of trials unhelpful. The U.S. Constitutional right to a jury trial and the California Constitutional right to a jury trial have been applied and interpreted differently. In California, there is a “preference for the trial of equitable issues before legal issues” which often produces a bench resolution that forecloses any legal claims. (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156‐157; see also, Raedeke v. Gibraltar Sav...

Excerpt: ... WITHOUT PREJUDICE. Although the underlying motions to compel were served upon defendant personally, notice of this Court's 12/10/21 order was only served upon defense counsel (who had just emerged from suspension). The current motion for terminating sanctions was also served only on defense counsel, despite his 11/29/21 declaration indicating that he had COVID, his secretary died from COVID, and his office was – to put it politely – in shamb...

Excerpt: ...rogatories, Set Two Propounded on Plaintiff Raven Sharp and Request for Monetary Sanctions – This is a business dispute between putative partners in a marijuana dispensary, with a sprinkling of alleged attorney self‐dealing. Before the Court this day are three defense motions seeking orders compelling further responses to special interrogatories and requests for production of documents (the motion set for 04/28/22 is included herewith). At is...

Excerpt: ...der barring defendants from selling the property before plaintiff's right to purchase can be fully vetted on the merits. Within 10 days after service of a written notice of entry of an order, an aggrieved party may make a motion to reconsider the order based upon new or different facts, circumstances, or law. CCP §1008(a). The moving party must demonstrate something new or different for the court to consider, and a satisfactory explanation for n...

Excerpt: ... pay‐by date. b) GRANTED, as modified, in the total amount of $75,000. Plaintiff seeks base fees of $91,548.50 plus costs of $1,449.27 for costs and fees incurred through February 28, 2022, plus anticipated fees and costs through the date of the instant hearing. The Civ. Proc. §998 Offer, however, limited the costs and fees through the date of the Offer, which was June 11, 2021. The Motion to Enforce is not opposed by the Defendants. Defendant...

Excerpt: ...t Defendant failed to comply with his own promised deadline for service of substantive amended responses within one week of the Court's ruling denying the arbitration motion. Moreover, Defendant acknowledges that the partial amended responses he provided have not been verified. Unverified responses are tantamount to no response at all. (Appleton v. Superior Court (Cook) (1988) 206 Cal.App.3d 632, 636.) Therefore, all objections have been waived a...

Excerpt: ... Request for Sanctions in the Sum of $1,050 ‐ DROPPED, at the request of the moving party. (a) Based on the Joint Status Statement submitted on 4‐15‐22, the Court recognizes that the dispute with regard to Mr. Broussard's deposition has now been resolved and only the issue of Mr. Crenshaw's deposition remains at issue in the instant motion. Plaintiff has demonstrated that the subject deposition was properly noticed pursuant to the requireme...

Excerpt: ... Before the Court this day is the hearing on plaintiff's application for final approval of the settlement. The gross settlement amount (“GSA”) is $925,000.00, which is intended to cover 2,469 class members. This is a non‐reversionary settlement (meaning nothing goes back to the defendant). Based on the whole of the record, this Court concludes that the gross settlement amount is fair and reasonable in light of the pertinent factors to consi...

Excerpt: ...�778.). The matters contained in Request for Admissions, Set One, are deemed admitted. 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. (Code Civ. Proc. §§2033.280(c), 2023.010(d), 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Therefore, Defendants are awarded monetary sanctions in the amount of $230 against Plaintiff and her att...

Excerpt: ... Esq. and Hinshaw & Culberston LLP – GRANTED; c) Plaintiff's Motion to Compel Responses to Demand for Production of Documents and Things; Request for Sanctions in the amount of $1,100.00 against Defendant David Greer and his Attorney of Record Attorney Bradley M. Zamczyk, Esq. and Hinshaw & Culbertson LLP – GRANTED; d) Plaintiff's Motion to have Request for Admissions Deemed Admitted or in the Alternative for an Order Compelling Answers; Requ...

Excerpt: ...lement to judgment on the Plaintiffs' Complaint. Specifically, Defendant's evidence demonstrates that liability is barred by the immunity provisions of Gov. Code §831.8 and that Defendant did not own or control the subject drain, roadway, or the shoulder separating the two. The burden then shifts to Plaintiffs to demonstrate the existence of disputed issues of material fact that defeat judgment in Defendant's favor. While Plaintiffs have provide...

Excerpt: ...sel, class representative, third‐party administrator), preliminary approval of settlement, and approval of a PAGA portion. Since the last hearing, plaintiff has addressed the concerns raised by this Court, including payment of the $75 filing fee per § 2699.3(a)(1)(B), submission of the actual proposed settlement to the LWDA per §2699(l)(3), and provision of a conformed copy of the complaint to the LWDA within 10 days of filing per §2699(l)(1...

Excerpt: ...ice staff in failing to provide a conformed copy of the complaint to the LWDA within 10 days of filing per §2699(l)(1). This Court will forgive the error since no prejudice is shown. Plaintiff has provided the requested information supporting the request for reimbursement of litigation costs, as well as a declaration from plaintiff supporting his request for an enhancement. Since plaintiff actually attended the mediation, his request for $7,500....

Excerpt: ...y “first look” at the records and authority to redact as warranted. The motion is in essence a CCP §1008 request for reconsideration of that 06/08/21 order, and shall be viewed as such. A motion for reconsideration is only timely if presented “within 10 days after service upon the party of written notice of entry of the order,” subject to challenge. CCP §1008(a). There is no notice of entry in this Court's registry, and no evidence of a...

Excerpt: ...pposed demurrer to plaintiff's complaint, which does not effectively state any cause of action. The demurrer is SUSTAINED with 20 days leave to amend. Injunctive relief is not itself a cause of action, but rather a remedy attendant a properly‐framed substantive claim. Department of Fair Employment and Housing v. Superior Court (2020) 54 Cal.App.5th 356, 384‐ 385. The pleading here might be one for declaratory relief pursuant to CCP §1060, or...

Excerpt: ...e Court notes that even if this were not a wrongful death case, the allegations that Ms. Morgan drove “with a measurable amount of alcohol” in her system are insufficent. A measurable amount of alcohol could be 0.01%, which would not constitute the sort of behavior that merits punitive damages. ...

Excerpt: ...ed. While this was previously sufficient inandof itself to seek withdrawal, the current rule requires counsel to “given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation.” Compare CRPC 3‐700(C)(1)(f) with CRPC Rule 1.16(b)(5). There is no statement regarding client consent or proposed order with the motion. See CRC 3.1362(c) and (e). Motion DENI...

Excerpt: ... Motion to Strike Portions of First Amended Complaint; e) DMC Defendants' Demurrer to First Amended Complaint; f) Hospitalists of Modesto Medical Group Inc., Arun Monoharan MD, and Li Huang, MD's Demurrer to Plaintiff's First Amended Complaint – This is a business dispute between an oncologist and the hospital with which is works. The operative pleading is the First Amended Complaint filed 11/15/21, which includes eight (8) causes of action aga...

Excerpt: ...ng the principal record of transactions between a debtor and creditor arising out of a contractual relationship between the two. CCP §337a. Defendant filed an answer denying all allegations of wrongdoing, and asserting a number of defenses to the debt – including at its core that she did not request or “accept” the credit card. There is no opposition filed to the motion. The moving papers do appear to have been mail ‐served on defense co...

Excerpt: ...nopposed demurrer to plaintiff's pleading, which defendant describes as a disguised writ of mandate. The demurrer is SUSTAINED with 20 days leave to amend. Injunctive relief is not itself a cause of action, but rather a remedy attendant a properly‐framed substantive claim. Department of Fair Employment and Housing v. Superior Court (2020) 54 Cal.App.5th 356, 384‐385. The pleading here might be one for declaratory relief pursuant to CCP §1060...

Excerpt: ...y be set aside on grounds implicating the validity of the sister‐state judgment (CCP §1710.40), and CCP §473.5 is generally inapplicable to motions attacking domestication of a sister‐state judgment. See Conseco Marketing, LLC v. IFA & Insurance Services, Inc. (2013) 221 Cal.App.4th 831, 844; Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 21. However, before drilling down into the merits, this Court notes that there is no proo...

Excerpt: ...7 (hereinafter “Pena”). Pena is a class action lawsuit against the same defendant, based on the same wage/hour violations. A PAGA cause of action was added to that case on 01/07/22. The case at bar is not a class action, but instead a straight PAGA action. The case at bar was filed 12/07/21 – after Pena was commenced but before the PAGA cause of action was added. Courts wrestling with this issue have looked to pleas in abatement, the policy...

Excerpt: ... a traditional writ of mandate under CCP §1085. Traditional mandamus is used to review adjudicatory decisions made without conducting evidentiary hearings required by law. Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4 th 117, 122‐124. It is most commonly used to compel an agency to exercise either a ministerial, or a discretionary, duty. See Keyes v. Bowen (2010) 189 Cal.App.4 th 647, 657‐ 661. An ac...

Excerpt: ...or negligence, fail to state facts sufficient to state a cause of action. Undue influence requires: i) the existence of a confidential or fiduciary relationship between the testator and the person alleged to have exerted undue influence; ii) active participation by such person in preparation or execution of the testamentary instrument; and iii) an undue benefit to such person or another person under the testamentary instrument thus procured. (Est...

Excerpt: ...e accident. The motion to quash is DENIED, but a protective order is GRANTED limiting the reach of the subpoenas to just five years pre‐ accident. Plaintiff's request for sanctions is DENIED because the demand to limit the records to “parts of the body” impacted is not reasonable given the type of injuries claimed, and a good faith meet and confer (CCP §§ 1987.1, 1985.3, 2017.020, 2025.420(a)) should have led to some resolution without ju...

Excerpt: ...w regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but contentions, deductions or conclusions of fact/law are not. In general, a pleading is ade...

Excerpt: ...successful Vietnamese farmers), Harpreet Dhaliwal (gas station operations), and Amanda Bui (attorney and investment advisor). The “defendant group” includes Nirmal Singh (successful businessman), his long‐standing attorneys, and various persons/entities associated with his business. Before the Court this day is the continued hearing on defendants' special motion to strike seven of the eight causes of action in the Master Complaint. As previ...

Excerpt: ...�Doe” and seeking leave to amend the pleading with that party's true name. CCP §474. Ignorance relates to either the defendant's identity (his name) or the capacity/manner in which the defendant may be responsible for the wrongdoing described in the operative pleading. McOwen v. Grossman (2007) 153 Cal.App.4 th 937, 942‐943. Ignorance as to “who” or “in what capacity” must be real, not feigned. See A.N. v. County of Los Angeles (2009...

Excerpt: ...d as follows: Delores Gates (hereinafter “decedent”) was an 88 year‐old elderly woman afflicted with dementia, and residing full‐time at defendant's senior memory care facility in Modesto since the summer of 2019. On the evening of 05/06/20, staff members applied a prescription lice treatment to decedent's scalp in the hopes of eradicating an on‐going (at recurring) lice infestation. The topical treatment was to have been rinsed out tha...

Excerpt: ...ital, so how could the allegations have merit? But an MSJ may be granted on legal or factual findings that a reasonable party might contest. Further, in this case, much of Plaintiff's evidence was stricken for lack of authentication; it is not clear from the record before the Court that the case was plainly frivolous or completely without merit. If the motion to tax were reached, the Court has substantial concerns that the claims for some of thes...

Excerpt: ...ses that are the subject of the instant motion. The failure to comply with this requirement constitutes a sufficient ground for denial of the motion, in the Court's discretion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892.) Nevertheless, Defendants have acknowledged that supplemental responses and production of documents are necessary and indicates that the same are in the process of being provided. Therefore, the hearing is continued and ...

Excerpt: ...each of a mandatory duty under Govt. Code §815.6. Public employee liability is limited by statute, and 815.6 specifies that liability only attaches to public entities. Individuals are not public entities. See Govt. Code §811.2. This is further evident from Govt. Code §820.4 [public employees not liable for failing to enforce laws], §821 [public employees not liable for failing to enforce enactments], and §822.2 [public employees not liable f...

Excerpt: ...bstantial injustice. Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5 th 463, 468; Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5 th 759, 766. Thus, “an affirmative showing of good cause” is required for any such motion. See CRC 3.1332(c). Good cause generally exists where (1) parties, lawyers or essential witness are unavailable for trial “because of death, illness, or other excusable circumstances;” (2) new counsel mu...

Excerpt: ...TED. Judgment shall be entered on the underlying debt in the amount of $65,872.40. In addition, Plaintiff has established entitlement to costs, but no admissible evidence of the amount of costs has been submitted. Therefore, Plaintiff may submit a cost bill within the time prescribed by statute. The Court will sign the proposed order submitted by Plaintiff. Counsel shall submit a revised form of judgment consistent with the Court's ruling herein....

Excerpt: ...uirements of the Code of Civil Procedure, and the moving party has not demonstrated that any substantive responsive information has been withheld. Moreover, the cases cited by the moving party do not demonstrate its entitlement to an order compelling further responses in the context of allegedly unmeritorious objections that are nevertheless accompanied by complete and substantive responsive information. Therefore, it appears there is nothing fur...

Excerpt: ...esto. Plaintiff was a front‐seat passenger in a Chevy Silverado truck. Defendant James Adams was operating a cement mixer on behalf of do‐defendants Calaveras Materials and/or South Valley Materials, and collided into the rear of the truck plaintiff was in. This would be a garden‐variety auto accident case but for plaintiff's contention that the defendants are morally culpable beyond mere negligence because they had reason to know that Adam...

Excerpt: ...atories from Frank E. Montenegro and for Monetary Sanctions Against Frank E. Montenegro, R. Dewey Wheeler, Luanne Rutherford, and Mcnamara, Ney, Beatty, Slattery, Borges & Ambacher LLP, Pursuant to CCP, Section 2030.300; c) Plaintiffs' Motion to Compel Further Responses to First Set of Special Interrogatories from Celia M. Montenegro and for Monetary Sanctions Against Celia M. Montenegro, R. Dewey Wheeler, Luanne Rutherford, and Mcnamara, Ney, Be...

Excerpt: ...of good faith and fair dealing; Unruh; negligence; FEHA discrimination; defamation; and privacy violations. The pleading was filed ostensibly by Allan Ladd – the conservatee – and Pamela Ladd – the conservator. Before the Court this day is a defensive demurrer and motion to strike, directed at the entirety of the pleading. Although the demurrer and motion to strike were served on plaintiff(s), no proper opposition was filed. There was a “...

Excerpt: ...lish by a preponderance of the evidence that plaintiff actually signed any contract containing an arbitration agreement. See Civil Code §1633.9; Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 546; Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1065; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844. Defendant also waived the right to seek arbitration by waiting 245 days from appearing to bring the m...

Excerpt: ...e issue of material fact. With regard to the moving defendant's motion challenging Plaintiff Evan Mays' causes of action for negligence (2 nd) and joint and several liability (3 rd): The Court finds that Defendant has met the initial burden with regard to the absence of a dangerous condition at the location of the plaintiff's accident. However, Plaintiffs have identified material factual disputes which prevent summary adjudication of this issue. ...

Excerpt: ... that the green sludge was actually present; and 2. The maintenance of the property was, as a matter of law, adequate. While Defendant raises doubts about these allegations, they do not amount to a successful summary judgment claim. Preliminarily, Defendant's argument that there was no mud or muddy substance either on the ground or on the Plaintiff is contested sufficiently to defeat summary judgment. Defendant does not dispute that witness Navar...

Excerpt: ...cations since 2006 of Revenue and Taxation Code section 5151 are minor. Thus, the arguably conflicting language (The Revenue and Taxation Code's language says it should be used for money “refunded to a taxpayer for any reason whatsoever,” while the Civil Code discusses “a tax or fee claim against a public entity that results in a judgment,”) is resolved in favor of the Civil Code. Further, the specific language “that results in a judgme...

Excerpt: ...ting separate lawsuits for trial, where they involve common questions of law or fact. The purpose is to enhance trial court efficiency and avoid the danger of inconsistent adjudications. As such, the power to consolidate cases pursuant to CCP §1048(a) only exists when the actions subject to consolidation are still pending. See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147‐1148; Martin–Bragg v. Moore (2013) 219 Cal.App.4th 367...

Excerpt: ...voked to bypass state law statutory protections. Where a collective bargaining agreement contains an arbitration clause, both sides shall be imputed with an intention to arbitrate claims relating to rights provided by that agreement, but shall not be imputed with an intention to also arbitrate facially‐similar statutory claims unless the agreement includes a clear and unmistakable waiver thereof. This Court finds the decisions in Wilson‐Davis...

Excerpt: ...e at any time [between 01/21/17] and when notice to the class is sent.” Before the Court this day is the initial hearing on plaintiff's application for provisional certification of a class, preliminary approval of class settlement, and approval of a PAGA settlement. The gross settlement amount (“GSA”) is $600,000.00, which is intended to cover 1,260 employees suffering one of many wage/hour violations. The hearing is CONTINUED to address/re...

Excerpt: ...leave to file a cross‐complaint against co‐defendant Hisun Motors Corp. USA (hereinafter “Hisun”) for express contractual indemnity and declaratory relief. The motion is GRANTED. First, since L&K never filed an answer to Hisun's 06/05/20 cross‐complaint, Hisun never secured entry of default thereon, and Hisun did not dismiss its cross‐complaint until after the pending motion was filed, L&K was arguably entitled as a matter of right to...

Excerpt: ...iance or cause any damages. The escrow agent reviewed the transaction and confirmed there was no error and escrow closed in February 2020. (Bldg. Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400: fraud without damage is not actionable.) Cross‐Defendant Sayedzada is not a party to any contract and therefore, specific performance is not a viable theory. Specific performance requires a breach of contract. (Real Est. Analytics, LLC v. ...

Excerpt: ...ject of the motion in conjunction with the supporting material facts claimed to be without dispute with respect to each such defense (subd. (d)(1)). The Court finds that this failure amounts to more than a technical oversight, as it prevents the Court from being able to determine whether all relevant material facts have been identified by the moving party and to reach the merits of the challenges presented herein. Such procedural defects in the s...

Excerpt: ...d a motion to strike directed at the prayer for punitive damages. The demurrer is SUSTAINED with 30 days leave to amend. The motion to strike is MOOT. The suggestion for a stay of the action pending the Supreme Court's review in Rattagan v. Uber Technologies, 19 F.4 th 1188 (9 th Cir. 2021) is premature. To begin, while the parties seem to agree that the principal issue to address on the demurrer is the economic loss rule, it is not quite so simp...

Excerpt: ...non‐exempt employees of [Mercer Foods LLC] within the State of California between 01/04/17 and the present.” Before the Court this day is the initial hearing on plaintiff's application for provisional certification of a class, approval of the management group (class counsel, class representative, third‐party administrator), preliminary approval of settlement, and approval of a PAGA portion. The application must be continued to 04/19/22 at 8...

Excerpt: ... Court this day is a defense demurrer directing at the elder abuse cause of action in the First Amended Complaint, and a motion to strike directed at the prayers for treble damages and attorney fees. Regarding the elder abuse cause of action, to state such a claim, plaintiffs must plead with particularity facts for each of the following essential elements: (1) decedent was a dependent adult; (2) decedent was abused or neglected; (3) defendant's e...

Excerpt: ...s never served on the custodian; therefore, it appears there is no effective subpoena at issue. Lastly, Defendants have demonstrated that the subject records were previously obtained via an earlier subpoena without objection from Plaintiff; therefore, the issue of waiver is implicated herein. b) The Court finds that Defendants' disclosure of Dr. Mann does not meet the requirements for supplemental expert designation set forth in Code Civ. Proc. �...

Excerpt: ...rejudice. Courts have a duty of inquiry regarding the grounds for the motion, and are not required to accept at face value vague, unsupported or uncertain representations as to reasons why an attorney wants out. Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134‐1136. Counsel has a corresponding duty to respond and to describe the general nature of the issue, within the confines of any privilege. Aceves v. Superior Court (1996...

Excerpt: ...r, in pro per. On 03/12/21, plaintiff caused to be served upon defendant at his address of record Request for Admissions 1‐6. Pursuant to CCP §§ 1013 and 2033.250, defendant had 35 days from the mailing to provide a verified written response. Defendant did not timely (or ever) serve responses. See Russo Decl Para 6. Pursuant to CCP §2033.280(b), the party propounding RFAs may “move for an order that the genuineness of any documents and the...

Excerpt: ...with Plaintiff's Second Amended Complaint, but unfortunately, the parties came to an impasse.” Mr. Holland's declaration says there was a single, non‐substantive e ‐mail from Mr. Brar to which Mr. Holland responded he would confer. These allegations do not appear consistent. The Court requires either receiving a copy of the email or to have it read in Court. The Court cannot overrule or grant the demurrer based on failure to confer (Code Ci...

Excerpt: ...� 2699.3(a)(1)(B), (c)(1)(B). Counsel to advise. 1. A conformed copy of the complaint “shall” be provided to the LWDA “10 days following commencement” of the action. §2699(l)(1). Counsel to explain the delay. 2. The LWDA is supposed to receive a copy of the actual proposed settlement agreement, not just notice of a settlement. Compare Safaei Decl para 25 with §2699(l)(3). 3. Regarding litigation costs, there is no paid invoice provided ...

Excerpt: ... Defendant Ciminocare dba Orangeburg Manor; Request for Sanctions – This is a personal injury action. Before the Court this day are three motions, filed by the plaintiffs, seeking an order compelling the defendants to provide further supplemental responses to Form Interrogatories (12.1, 12.6), and Document Requests (4, 8, 9). The motions are GRANTED as set forth herein. A party responding to interrogatories has an obligation to provide response...

Excerpt: ...jurisdiction to determine whether an employee was probationary or permanent. Contrary to Defendant's arguments, the Board did not make the finding that Plaintiff was a probationary employee. Plaintiff also applied to this court for permission to seek adjudication on the issue whether Plaintiff was entitled to Skelly due process as a permanent employee, which was granted. Defendant's claim that Plaintiff would not be entitled to Skelly regardless ...

Excerpt: ...een the parties to arbitrate the claims at issue in the operative Complaint. Although the parties did agree to arbitrate “any dispute arising from enrollment (excluding non‐ payment of tuition or fees),” the term enrollment is ambiguous. Whether it is to be interpreted against the defendant (Civil Code §1654) or still in favor of arbitration (Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 663‐668), enrollment is gen...

Excerpt: ... to either motion, and indeed has not been heard from since he DocuSigned the substitution of attorneys on 08/30/21. The motion for terminating sanctions is DENIED without prejudice. The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12. Although this Court has broad...

Excerpt: ...on were at issue in the earlier demurrer, which this Court sustained. Demurrer to the 1 st cause of action for breach of the 05/22/20 Commercial Property Purchase Agreement is sustained based entirely upon plaintiffs' concession thereto and express representation that the claim will be voluntarily dismissed. Demurrer to the 4 th cause of action for promissory fraud is sustained without leave to amend, but without prejudice to a later motion for l...

Excerpt: ...he Court this day is plaintiff's application for a preliminary injunction barring defendant from taking possession, despite an order from the related UD action (UD‐21‐000303) that she surrender possession. The application for preliminary injunction is DENIED in part and GRANTED in part. The proper way to stay an eviction order is through the UD bench officer issuing the order (or through the appellate channels associated therewith). See CCP �...

Excerpt: ...es of action alleged in the operative pleading. The oral/implied contract upon which plaintiff sues was negotiated and formed in California by members residing in California. That the contract ultimately inured to the benefit of an Arizona entity is of no consequence since the Arizona entity did not exist when the oral contract was consummated, and subsequent incorporation does not erase or sanitize the extensive California contacts made to secur...

Excerpt: ...ticularly in view of the parties' stipulated protective order. Even assuming arguendo that P can establish the above‐described elements, Defendant has demonstrated that the subject discovery is directly relevant to the claims herein and that less intrusive methods are unavailable, based on Plaintiff's own conduct with regard to other methods of discovery in this action. ...

Excerpt: ...otion, the demurrer and motion to strike directed at the First Amended Complaint is continued to 04/12/22 at 8:30 a.m. in this department. The demurrer and motion to strike currently on calendar for 03/10/22 is hereby advanced to today's date and continued to 04/12/22 at 8:30 a.m. in this department. The CMC currently on calendar for 03/14/22 is hereby advanced to today's date and continued to 06/13/22 at 8:30 a.m. in this department. All future ...

Excerpt: ...ing arbitration, pursuant to the lengthy arbitration clause printed on the back of the Retail Installment Sale Contract. On a motion to compel arbitration under Code of Civil Procedure §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 c...

Excerpt: ...D; c) Defendants' Motion for Summary Judgment, or in the Alternative, for Summary Adjudication –SUMMARY JUDGMENT DENIED; SUMMARY ADJUDICATION GRANTED, in part, and DENIED, in part. (a), (b) The Court is inclined to consider the appointment of a discovery referee in this matter, based on the numerous time‐consuming discovery issues requiring resolution as well as the history of discovery disputes and the parties' inability to informally resolv...

Excerpt: ...ures contemplated by Dr. Rogers is insufficient to allow the Court to draft the order with the degree of specificity required by law. (Code Civ. Proc. §2032.320(d); Carpenter v. Superior Court (Yamaha Motor Corp.) (2006) 141 Cal.App.4 th 249.) Therefore, counsel shall appear at the hearing to present such information to the Court. In addition, counsel shall meet and confer with regard to an anticipated date of the exam to be included in the orde...

Excerpt: ...f in His Complaint –SUMMARY JUDGMENT GRANTED, and unopposed. a) Defendant, as the moving party, has demonstrated entitlement to judgment on the claims asserted in Plaintiff's Complaint. Based the declarations of Rudy Baca, Xavier Baca, Robert Fores, the evidence submitted therewith, and the matters subject to judicial notice, and in the absence of opposition, the Court concludes that Defendant owed no duty to Plaintiff based on the fact that he...

Excerpt: ...f in His Complaint –SUMMARY JUDGMENT GRANTED, and unopposed. a) Defendant, as the moving party, has demonstrated entitlement to judgment on the claims asserted in Plaintiff's Complaint. Based the declarations of Rudy Baca, Xavier Baca, Robert Fores, the evidence submitted therewith, and the matters subject to judicial notice, and in the absence of opposition, the Court concludes that Defendant owed no duty to Plaintiff based on the fact that he...

Excerpt: ...ludes Kevin and Pauline Doan (successful Vietnamese farmers), Harpreet Dhaliwal (gas station operations), and Amanda Bui (attorney and investment advisor). The “defendant group” includes Nirmal Singh (successful businessman), his long‐ standing attorneys, and various persons/entities associated with his business. Before the Court this day is a special motion to strike, directed at seven of the eight causes of action in the Plaintiffs' Maste...

Excerpt: ...on clause covering “any dispute arising from enrollment” (emphasis added) is broad enough to cover torts committed by defendant's employee during periods of instruction, which is controlled in part by the related question of whether the FAA actually applies to the substantive question of how to resolve ambiguities. See Victoria v. Superior Court (1985) 40 Cal.3d 734; Nixon v. AmeriHome Mortgage Company, LLC (2021) 67 Cal.App.5th 934; Western ...

Excerpt: ...caped a discovery referee and/or a sizable monetary sanction – would ask this Court to revisit that order. Nevertheless, Code of Civil Procedure §1008(a) requires that any motion for reconsideration be supported by an affidavit from the moving party setting forth “what new or different facts, circumstances, or law are claimed to be shown.” The motion is not properly presented as one for statutory reconsideration under Section 1008 because ...

Excerpt: ... will not be prejudiced by the proposed amendment, particularly in view of the fact that Defendant would have no ability to conduct further discovery on the newly alleged claims should the amendment be allowed. Lastly, the Court notes that the motion fails to comply with the requirements set forth in Cal. Rules of Ct., rule 3.1324 in that Plaintiffs failed to identify by page, paragraph and line number any additions/deletions from the previous ve...

Excerpt: ...ty of its claim to possession and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. Based on the pleadings before the Court, Plaintiff has established the probable validity of his conversion claim since the evidence suggests defendant has no intention of completing the work or returning the vehicle. Plaintiff has shown a right to immediate possession of the vehicle and...