Excerpt: ... The reply brief starts, “Plaintiff's opposition to defendant's motion […] appears to be speaking to a complaint other than the one that was actually filed.” The reply brief is correct. The complaint alleges that they knew or should have known of the condition. It does not allege that Defendant actually knew of it. There are no specific facts provided that indicate any specific individual person was aware of the issues. The conclusions of t...

Excerpt: ... to the subject discovery and all objections are waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Plaintiff is entitled to an order compelling Defendant to provide verified responses, without objection, within 15 days. (Code Civ. Proc. §§2030.290(b).) The Court further finds that Plaintiff is entitled to an award of monetary sanctions in connection with this motion. (Code Civ. Proc. §§2030.290(c), 2023.010(d), 2023.030(a); Cal. Rules of ...

Excerpt: ... Montenegro and for Monetary Sanctions against Frank E. Montenegro and Celia M. Montenegro, R. Dewey Wheeler, Luanne Rutherford and McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP, pursuant to CCP Section 2031.310(H); c) Plaintiffs' Motion to Compel Further Responses to and Further Production in Reponses to the First Set of Demands for Inspection and Copying from Frank E. Montenegro and for Monetary Sanctions against Frank E. Montenegro a...

Excerpt: ...ose CA; c) Motion to Expunge Lis Pendens and for Attorneys' Fees and Costs – 30 W Reed, San Jose CA; d) St Motion to Expunge Lis Pendens and for Attorneys' Fees and Costs – 425 N 7 th St, San Jose CA – a) Samuel Orozco's Motion to Expunge Lis Pendens Re: 458 N. 7th Street, San Jose CA – Continued from Tuesday, 2/1/22, to Wednesday, 2/9/22: Respondent Samuel Orozco's Motion to Expunge Lis Pendens filed against 458 N. 7 th Street, San Jose,...

Excerpt: ...on of public property. As to the former, defendant has established the absence of evidence that any City employee is liable for any omission or commission relative to the identified sidewalk, and thus no basis for respondeat superior. Plaintiff has presented no evidence to create a triable issue of fact hereon. As to the latter, while plaintiff does present a triable issue of fact regarding the existence of a dangerous condition of public propert...

Excerpt: ...to obtain counsel, Defendant was not represented by counsel until recently. Demurrers should be filed within 30 days with an extension of 30 days available (Code Civ. Proc. Section 430.40). The Court may still hear it if there is good cause to overlook the late filing (Jackson v. Doe (2011) 192 Cal.App.4th 742), but this filing is about 18 months late and the fault of the defense. Defendant is ordered to file an answer within 10 days or be subjec...

Excerpt: ...for strict product liability. According to the defense, this cause of action is time‐barred and not sufficiently similar to plaintiff's viable claims to relate back. The demurrer is OVERRULED. At the pleading stage, defendant must negate relation back, and in this instance the allegations supporting the original negligence claim and the new product liability claim appear to be based on the same general set of facts, seek recovery against the sa...

Excerpt: ...g discovery thus far confirms that she has percipient knowledge about the entity defendants' handling of the issues presented by P's claims in this case. Additionally, as it appears that the discovery conducted thus far has not been effective in revealing the extent of Ms. Cunliffe's knowledge or involvement regarding such issues, Plaintiff has demonstrated that Ms. Cunliffe possesses superior or unique knowledge of the same. Counsel shall meet a...

Excerpt: ...monstrating entitlement to judgment herein. Specifically, Defendant has demonstrated that Plaintiffs cannot establish the elements of negligence and causation against the moving defendant and cannot assert a theory of vicarious liability based on ostensible agency in this instance as a matter of law. ...

Excerpt: ...sion shall issue after a noticed hearing if (1) the plaintiff has established the probable validity 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...

Excerpt: ...ternative for reconsideration of the order granting the motion for summary judgment. The motion for relief in the alternative is DENIED. First, there is no legal nor factual basis presented for setting aside the Judgment under CCP §473, which was necessary after defendants prevailed on their summary judgment motion. Second, regarding the motion for summary judgment itself, the time to seek reconsideration of the determination on the motion has a...

Excerpt: ...ual abuse by a nurse (causing emotional distress), 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). Defendant's demurrer and motion to strike are directed at most of the charging averments in the operative Fourth Amended Complaint. The demurrer is based on the failure to state, as well as on grounds of uncertai...

Excerpt: ... at 8:30 a.m. in Department 24. This is a residential tenancy dispute commenced by way of complaint on August 12, 2021. The Court notes this is the first of thirty‐two (32) discovery motions – on calendar in this matter through February 9, 2022. The eight (8) motions on calendar on this date are brought to compel further responses to every inquiry included in Plaintiffs' first set of Judicial Council Form Interrogatories. The separate stateme...

Excerpt: ...on, defendant explains his ignorance about the need to tender such fees, including the defective advice he received from a third‐party legal service provider, which together qualifies for discretionary relief under Code of Civil Procedure section 473(b). See, e.g., Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 697; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1140‐ 1141. Moreover, defendant could have avoided the first appearance fee ...

Excerpt: ... and the documents of which the Court takes judicial notice – demonstrate that Defendant is entitled to summary judgment. Where a party has made a prima facie showing that it is entitled to summary judgment, it "causes a shift, and the opposing party is then subjected to a burden of production of [their] own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th...

Excerpt: ... and the April 2015 transfer of House's shares in Pollination Inc. to the corporation and (2) providing other relief in accordance with sections 3439.07 and 3439.08 and this opinion.” On the same day that plaintiff filed this motion, this Court issued a Minute Order setting a hearing for March 1, 2022, with a briefing schedule commensurate therewith, to address the second part of the Court of Appeal order. Where a reviewing court reverses a jud...

Excerpt: ...tions are generally deemed substantial enough, particularly when deemed necessary to hire an outside investigator); and ii) the allegations were founded (i.e. discipline was imposed). (See, Marken v. Santa Monica‐Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1271‐1276; see also, Associated Chino Teachers v. Chino Valley USD (2018) 30 Cal.App.5th 530, 541‐ 543; see also, newly enacted 2019 statutes disfavoring withholding of sexua...

Excerpt: ...ty, has met the burden of demonstrating entitlement to judgment herein. Specifically, Defendant has demonstrated that Plaintiffs cannot establish the elements of negligence and causation against the moving defendant and cannot assert a theory of vicarious liability based on ostensible agency in this instance as a matter of law. ...

Excerpt: ...otor vehicle accident on October 19, 2016 at a round‐about in Escalon. Plaintiff Kim Worcester was sleeping as a passenger in a 2003 Chevrolet Silverado truck. Defendant Tisa Conner's son, Nathan Conner, was driving a 2002 Chevrolet Tahoe. Defendant Tisa Conner owned and insured the 2002 Tahoe driven by Mr. Conner. (Undisputed Material Fact [hereinafter, “UMF”] # 4; Declaration of Tisa Conner [hereinafter, “Conner Decl.”] at ¶ 2.) Mr. ...

Excerpt: ...fs' causes of action for elder abuse and wrongful death do not state sufficient facts is OVERRULED. However, this Court finds that both causes of action as pled are uncertain and on that ground the Defendants' demurrer is SUSTAINED, with leave to amend. Plaintiffs have not carefully considered the scope of a survival action versus the wrongful death action, and in neither instance are the allegations contained in the complaint adequately tethered...

Excerpt: ...uses of Action for slander of title and quiet title require that the plaintiff own or have an interest in the property but the foreclosure has already occurred. These defects cannot be cured, and therefore, the Demurrer is SUSTAINED, without leave to amend, as to the Third, Fifth, Seventh, and Eighth Causes of Action. The First Cause of Action (Fraud), Second Cause of Action (Unconscionable Contract), Fourth Cause of Action (Wrongful Foreclosure)...

Excerpt: ...he evidence presented is inconclusive and amplified by conjecture. In opposition to the application, Defendant admits to receiving a hierarchy table from his son after the issuance of the injunction and before his son stopped working for Plaintiff. According to Defendant, the hierarchy chart was (1) not proprietary at all, (2) not used in any way and (3) shared for innocent reasons (Defendant's son was “boasting”). Although this hierarchy cha...

Excerpt: ...Plaintiffs' motion asserts that such forms have been provided, the correspondence attached to counsel's declaration does not confirm this information, and the defense indicates that such documentation has not been provided for Plaintiffs Rosa and Brian Cornejo. Counsel shall appear to advise the Court of the status of this exchange, as it appears the settlement can be concluded if such alternate documentation can be provided. ...

Excerpt: ...ima facie entitlement to adjudication of the subject causes of action based on the existence of a contractual release of liability executed by the decedent, the Court finds that Plaintiffs have met their burden of demonstrating the existence of material factual disputes precluding judgment on that basis. At a minimum, Plaintiffs have introduced admissible evidence supporting their assertion that the decedent lacked the capacity to enter into the ...

Excerpt: ...the lack thereof. However, petitioners are entitled to fees under CCP §1021.5 because they were successful in an action which has resulted in the enforcement of an important right affecting the public interest, and which conferred a significant benefit to a large class of persons. Additionally, Respondents' request to disallow fees associated with the motion to strike the prayer for attorney fees is GRANTED. Hearing on the Petitioners' motion is...

Excerpt: ...tter for “trial” on the merits. Based on the parties' pleadings, the essential dispute apparently centers around the “right” to present “live” testimony at the hearing, including the “right” to do so unique to the fourth cause of action for disgorgement. However, given the unique nature of writ proceedings, there is no “right” to present “live” testimony at any hearing the Court conducts, and a determination by this Court ...

Excerpt: ...endant has not shown clearly, positively and unmistakably from the text alone that Code of Civil Procedure section 340.1(q) and/or Government Code section 905(m) violate either the constitutional right to due process or the proscription against gifts of public funds. Defendant's general demurrers against the first and/or second causes of action for failure to state facts sufficient to state a cause of action are SUSTAINED with twenty (20) days le...

Excerpt: ...�related claims to arbitration. Plaintiff does not deny signing the agreement and provides no evidence to support his contention that the agreement was “required” as a condition of his employment with Defendant or that he was otherwise compelled to sign the agreement. There is no evidence of procedural unconscionability. While at the time Defendant moved to compel arbitration of Plaintiff's individual claims, the operative complaint did not c...

Excerpt: ...r applied for a late claim or that the Board ever took action of Petitioner's application for late claim, and therefore the jurisdictional requirement for this Petition has not been met. (Gov't. Code 946.6(b); Nguyen v. Los Angeles Cty. Harbor/UCLA Medical Ctr. (1992) 8 Cal.App.4th 729, 732.) However, an application to file a late claim would relate back to the original claim and deadlines commensurate therewith. (Gov't. Claim 910.6(a); Sofranek ...

Excerpt: ... for a deposition. Defendant's request for monetary sanctions is DENIED. Though not in perfect form, plaintiffs' “Notice to Cancel and Reschedule” is the functional equivalent of a motion for an unfiled protective order, which should have caused counsel to resolve the scheduling issue rather than seeking fees and a court order. See CCP §§ 2025.420(b), 2025.450(b)(2); Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109...

Excerpt: ...that does not meet the requirements set forth in Code Civ. Proc. §437c(f)(2). Upon review of the papers related to that issue, the Court finds that Defendant has demonstrated that the instant motion is based on a different legal theory and changed circumstances from the first motion and is, therefore, permissible in the exercise of the Court's discretion. As Mr. Shaw submitted no substantive opposition to the defense's undisputed material facts ...

Excerpt: ...ourt will issue sanctions under Code Civ. Proc. section 177.5 for failing to follow the Court's direct orders. If it was filed, the Court anticipates a clear explanation of how this motion was permissible given that a ruling had already been made. The Court is likely to issue a case management order requiring leave of court to file any further section 128.7 motions by either side, and will accept argument on whether it should do so. Some backgrou...

Excerpt: ... 893, 938.) A complaint must be read as a whole. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for failing to state facts sufficient to constitute a cause of action must be to the entire cause of action, not specific factual allegations. (Code of Civ. Proc. §430.10(e).) The eight allegations identified in the demurrer as supporting the nuisance claim, when read as a whole, sufficiently state the elements for a private nuisance claim. (...

Excerpt: ...motional distress, and public nuisance. (Code Civ. Proc. §430.10(e).) The amendments included in the present version of the pleading are minimal and appear to consist only of contentions and conclusions rather than additional factual allegations supporting the same. Therefore, based on the allegations in the Second Amended Complaint, it appears that the action sounds in negligence. As Plaintiff has failed to demonstrate the ability to allege any...

Excerpt: ...her First Amended Complaint ‐ CONTINUED on the Court's own motion to January 28, 2022, at 8:30 a.m. in Department 24. a) Defendant's moving papers – including its separate statement of undisputed material facts, the declarations of Kaitlin E. Showerman and Armando Flores, the exhibits attached thereto and the documents of which the Court takes judicial notice – demonstrate that Defendant is entitled to summary judgment. Where a party has ma...

Excerpt: ...'s First Amended Cross‐Complaint – DENIED, in part; GRANTED, without leave to amend, in part. a) A complaint may allege multiple theories and the same facts can support different causes of action. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) The Demurrer is OVERRULED as to the Second and Third Causes of Action being duplicative of the First Cause of Action. (See, e.g., Carma Devs. (Cal.), Inc. v. Marathon Dev. California,...

Excerpt: ....) A complaint must be read as a whole. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for failing to state facts sufficient to constitute a cause of action must be to the entire cause of action, not specific factual allegations. (Code of Civ. Proc. §430.10(e).) The eight allegations identified in the demurrer as supporting the nuisance claim, when read as a whole, sufficiently state the elements for a private nuisance claim. (San Diego...

Excerpt: ...laim, given the timing of various discussions. Thus, we reach the merits. Pub. Res. Code section 21167.6(e)(7) and (10) provide: (e) The record of proceedings shall include, but is not limited to, all of the following items: (7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project. (10) Any other written materials relevan...

Excerpt: ... damages. Specifically, the declarations of Steven Fugaro, M.D. and Jay Solnick, M.D. raise disputed factual issues with regard to whether Dr. Akmal's alleged failures in rendering treatment to Plaintiff Witter fell below the standard of care and proximately resulted in the Plaintiffs' claimed injuries. (See, at a minimum, Plaintiffs' evidence in response to UMFs 5‐7.) Plaintiffs' objections to Defendant's evidence are OVERRULED as to Items 1�...

Excerpt: ...n part. a) The Motion to Amend was filed December 22, 2021, which is untimely for not being filed/served at least 16 court days before the hearing date in violation of Code of Civ. Proc. Section 1005(b). b) Preliminarily, Plaintiff's objections to counsel representing the individual employees is not supported by evidence and a separate motion would be required to recuse the attorney. The first ten causes of action merely identify parties and fact...

Excerpt: ...s not require production of the data requested by Plaintiff in connection with the contemplated exam. (Code Civ. Proc. §2032.610; Roe v. Superior Court (2015) 243 Cal.App.4 th 138.) In addition, the defense examiner, Dr. Glidden, has expressed concerns about the implications of the requested production with regard to his professional ethical obligations, and the law recognizes the trial court's discretion in evaluating such concerns. (See, e.g. ...

Excerpt: ...ponses, no substantial justification or unjust conditions are shown to avoid the imposition of modest sanction. This Court finds that the filing fee of $60, plus 1.5 hours of attorney time, is reasonable, for a total sanction of $750.00 – payable by plaintiffs within 10 days. Defendant to give notice. ...

Excerpt: ...ion of Public Policy: Plaintiff has met the minimal threshold to demonstrate a prima facie case of discrimination based on race related to the shift schedules and assignments of less‐desirable tasks. (Material Fact ## 2, 3, 14; Additional Material Fact ## 82, 89, 96, 97,101, 102.) Defendant has met its burden to explain the legitimate non‐discriminatory basis for these business decisions. (Material Fact ## 9, 10, 11, 12, 13, 162.) Plaintiff h...

Excerpt: ...ion of Public Policy: Plaintiff has met the minimal threshold to demonstrate a prima facie case of discrimination based on race related to the shift schedules and assignments of less‐desirable tasks. (Material Fact ## 2, 3, 14; Additional Material Fact ## 82, 89, 96, 97,101, 102.) Defendant has met its burden to explain the legitimate non‐discriminatory basis for these business decisions. (Material Fact ## 9, 10, 11, 12, 13, 162.) Plaintiff h...

Excerpt: ...D as to the Streets and Highway Code and the City Ordinances. The Request is DENIED as to the Google Maps street image and City of Modesto Public Works website. City's Objections to Evidence are SUSTAINED as to 1‐8 pertaining to Zachary Moore's Declaration. The objections are OVERRULED as to numbers 9 and 10 pertaining to Maxine and Felix Bracero's Declarations. Church's objections to evidence are SUSTAINED as to 1‐ 12 pertaining to Zachary M...

Excerpt: ...mages. Specifically, the declarations of Steven Fugaro, M.D. and Jay Solnick, M.D. raise disputed factual issues with regard to whether Dr. Naing's alleged failures in rendering treatment to Plaintiff Witter fell below the standard of care and proximately resulted in the Plaintiffs' claimed injuries. (See, at a minimum, Plaintiffs' evidence in response to UMFs 5‐7.) Plaintiffs' objections to Defendant's evidence are OVERRULED as to Items 1‐6 ...

Excerpt: ...e allegations of the Complaint to create a triable issue of fact. College Hospital, Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 720, fn.7. 2. Exhibit D – various objections – OVERRULED. Exhibit D was provided as a response to Form Interrogatory 201.1 and as such is admissible under Code Civ. Pro. section 437c. 3. and 4. Exhibits F and H—lacks foundation/authentication—SUSTAINED. The attorney cannot provide the foundation for the documents. Cod...

Excerpt: ... already at issue in this case, and do not open up a wide range of other issues. Whether the allegations can ultimately be proven is not a relevant inquiry for whether the amendment is proper. The Court will sign the proposed order submitted with the moving papers. b) The moving party must establish good cause for the delay in filing. The moving parties previously attempted to file this motion but it was not timely served. It is not clear from th...

Excerpt: ... issue of standing for this purpose. In fact, the word “standing” does not appear in La Jolla Grp. II. This is unhelpful to the Court. Furthermore, even if Defendant's assertion that Plaintiff requires ownership or possessory interest is correct, the Complaint suggests, at a minimum, that Plaintiff has possessory interest. Therefore, the Motion for Judgment on the Pleadings as to the First Cause of Action on the issue of standing is DENIED. T...

Excerpt: ...aint – GRANTED. Defendant Pedro Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections to th...

Excerpt: ...e court finds consolidation is proper because plaintiff has shown the presence of “common question[s] of law or fact.” (Code Civ. Proc., § 1048, subd. (a).) Gregg v. Patrick CV‐21‐002839 is to be consolidated into this action, with CV‐19‐005163 remaining the lead case number. b) The granting of defendant Patrick's consolidation request means this case is no longer at issue, such that all discovery and related deadlines will be calcul...

Excerpt: ... the trustee's sale is final, but subsequent case Melendrez v. D&I Investment Inc. (2017) 127 Cal.App.4 th 1238 clarifies that the borrowers' challenge was not always precluded – the fundamental issue of whether the buyer was a bona fide purchaser is subject to litigation with an eviction case even after a trustee's sale which appears on its face to be valid. But, in this case, there is no allegation that E5 is not a bona fide purchaser. While ...

Excerpt: ...ourth Causes of Action of Plaintiffs' Third Amended Complaint ‐ SUSTAINED, without leave to amend; d) Defendant Doctors Medical Center of Modesto Inc.'s Demurrer to Plaintiffs' Third Amended Complaint – SUSTAINED, WITHOUT leave to amend. (a) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (b) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (c) Both causes of action subject ...

Excerpt: ...n because she was late. People v. Gutierrez was originally set in Department 23 at 9 a.m. on August 2, 2021. The Court reassigned Gutierrez to itself as the later‐filed related case under California Rule of Court 3.300(h). Because it was set for 9 a.m., the court retained that time but moved the case from Department 23 to Department 21. The Court wanted to keep the cases together. DDA Cramton filed a declaration to the OSC re: sanctions regardi...

Excerpt: ...ion to Compel Responses from Defendant Valiplug, Inc. to Requests for Production; e) Plaintiff and Cross‐ Defendant Rainy Prock's Motion to Compel Responses From Defendant Valiplug, Inc. to Requests for Admission; f) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses from Defendant Darron Silva to Requests for Inspection or Production of Documents; g) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses...

Excerpt: ...omplaint – GRANTED. Defendant Candida Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections...

Excerpt: ...djudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Arnulfo Garibay, in his First Amended Complaint – GRANTED. Defendant Orlando Torres Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Gari...

Excerpt: ...OWELL's fencing in the area of the incident are designed and maintained in such a way that it meets or exceeds the requirements set forth in the Food and Agriculture Code.” Plaintiff's expert opines that “[t]he livestock industry standard is to attach fence wires to the inside of the posts” instead of to the outside of the posts, where the expert inferred defendant's wires had been attached, but no source of authority is provided as to why ...

Excerpt: ... constitute a defense to the complaint. (Ibid; Compl., ¶¶ CC‐1, CC‐2.) Based upon defendant Martha Q. Baeza's admission in her answer, the Court also finds that the defect cannot be cured by amendment, and defendant has not met her burden of showing otherwise. (Pang v. Beverly Hosp., Inc. (2000) 79 Cal.App.4th 986, 989–990; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see Blank, supra, 39 Cal.3d at p. 318; Answer, ¶ 3(b).) The no...

Excerpt: ...ant must allege the names of the persons who allegedly made the fraudulent representations, their authority to speak, to whom they spoke, what was said and when. (See, e.g. Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157.) As Cross‐Complainant has represented the ability to amend the pleading to correct these deficiencies, the Court will grant leave to amend in this regard. Cross‐Complainant shall submit an amended ple...

Excerpt: ...essor‐in‐interest. (b) The Court finds that the Motion to Strike should be GRANTED as to Items 1, in part (page 7, line 17), and 4 relative to the request for treble damages under the provisions of Civ. Code §3345. The Court finds no authority for application of that section in the instant context, and Plaintiff does not oppose the removal of these allegations. The motion is DENIED as to the remaining portions of Item 1 (page 7, lines 15‐1...

Excerpt: ... and prevailing rate in the community. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Bd. of Trustees of California State Univ. (2005) 132 Cal.App.4th 359, 394; Serrano v. Unruh (1982) 32 Cal.3d 621, 643; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal. App. 4th 140, 154.) The declarations in this case were detailed and demonstrate the hours claimed were reasonably incurred and substantially contributed to the ultimate result. T...

Excerpt: ...instead deeming the arbitration clause valid. (See, e.g., Samaniego v. Empire Today LLC (2012) 205 Cal.App.4th 1138, 1144–1145.) All evidentiary objections are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of the motion (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important” objections that “are critical ...

Excerpt: ...e policy underlying the dismissal statute, which seeks to prevent unreasonable delays in litigation, the policy is less powerful than that which seeks to dispose of litigation on the merits rather than on procedural grounds.' ” (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562–563.) A plaintiff opposing a motion to dismiss on the ground asserted here need only “make[] some showing of excusable delay” (Ibid), and that standar...

Excerpt: ...rator distributing $7,500 of that amount directly to the California Labor and Workforce Development Agency and distributing the remaining $2,500 to the class members. The proposed attorney's fees of $146,666.66 and litigation costs of $12,901.97 are reasonable and shall be approved as payable to class counsel. Also, the proposed service payment for the named plaintiff is hereby approved, and the two named plaintiffs shall equally divide a service...

Excerpt: ...for each element of the stated claim. (Zuniga v. Housing Authority (2002) 41 Cal.App.4 th 82.) As the allegations suggest that Plaintiff may be able to plead such facts in order to overcome demurrer, the Court grants leave to amend in this regard. Plaintiff shall submit his Second Amended Complaint within 20 days. (a) Plaintiff cannot pursue a claim for damages under Civ. Code the Unruh Act against a public school district as a matter of law. (Se...

Excerpt: ... exists. (See, e.g., New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d., 689–690.) However, such a cause of action must be pled with particularity. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526; see also Snider v. Whitson (1960) 184 Cal.App.2d 211, 214 [“Where a plaintiff relies upon wilful misconduct there are sound reasons why he should be required to state the facts more fully than in ordinary negligence cases so that it may ...

Excerpt: ...t to fail because Atlantic allowed the Machado defendants but not plaintiffs to withdraw from the sale without consequence, thereby protecting the Machado defendants at plaintiffs' expense when the Atlantic defendants were allegedly obligated to represent each set of parties equally. Because plaintiff's allegations are focused on the structure of the sale rather than advice about the sale, the court also disagrees that “Plaintiffs' entire claim...

Excerpt: ... Defendant entirely failed to respond to the subject discovery and all objections are waived. (Code Civ. Proc. §2030.290(a), 2031.300(a).) Therefore, Plaintiff is entitled to an order compelling Defendant to provide verified responses, without objection, within 15 days. (Code Civ. Proc. §§2030.290(b), 2031.300(b).) With regard to the request for sanctions, the Court finds that while defense counsel describes extenuating circumstances surroundi...

Excerpt: ...upport of the Reply only support $504.13 in jury fees and $2,772.60 in deposition costs. There is also a duplicate charge of $248.00 for deposition costs. Therefore, $14.81 is taxed as to the Jury Fees and $566.15 is taxed as to the Deposition Costs. The Motion is GRANTED as to the expert witness fees. The Cal. Civ. Pro. 998‐offer was jointly made to both plaintiffs without any apportionment and required both plaintiffs to accept. Therefore, it...

Excerpt: ...icting factual allegations in a challenged pleading. (Alameda County Waste Mangement Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5 th 1162.) Dismissal is mandatory unless a statutory exception applies, but such exceptions are strictly construed against the plaintiff. (Cal. Civ. Pro. 583.240; Inversiones Papaluchi S.A.S. v. Sup. Ct. (2018) 20 Cal.App.5th 1055, 1062.) In this case, Plaintiff did not exercise due diligence. This case w...

Excerpt: ... (Code Civ. Proc. §430.10(e).) Moreover, Plaintiff's opposition sets forth no additional facts that could be included in an amended pleading to overcome demurrer, and the Court is convinced that he is unable to do so. Additionally, the Third Amended Complaint remains fatally uncertain, unintelligible, and inconsistent with regard to essential factual information necessary to the subject causes of action. (Code Civ. Proc. §430.10(f).) (b) The Mo...

Excerpt: ...t and obsessive” litigants. Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1198. Section 391 provides, in pertinent part, as follows: (b) “Vexatious litigant” means a person who does any of the following: (1) In the immediately preceding seven‐year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (...

Excerpt: ...laint seeks monetary damages that are not available in an unlawful detainer proceeding. Specifically, the damages described in Paragraph 19, subd. (i) of the Complaint are not alleged to have resulted from the unlawful detention of the premises or to have accrued during that period. Therefore, they are not properly sought herein and the prayer for such damages shall be stricken from the Complaint. Defendant shall file an answer within 5 calendar ...

Excerpt: ...nt of the court's tentative ruling. The court may adopt, modify or reject the tentative ruling after considering the parties' oral arguments. The tentative ruling will have no legal effect unless adopted by the court. No notice of intent to appear is required. If you wish to submit on the tentative decision, you may send a telefax to Judge Borrell's secretary, Hellmi McIntyre, at 805‐477‐ 5894, stating that you submit on the tentative. A copy...

Excerpt: ...rder compelling Defendant to provide verified responses, without objection, within 15 days. (Code Civ. Proc. §§2031.300(b).) The Court further finds that Plaintiff is entitled to an award of monetary sanctions in connection with this motion. (Code Civ. Proc. §§2031.300©, 2023.010(d), 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Therefore, monetary sanctions in the amount of $310 are awarded against Defendant and his counsel, payable to P...

Excerpt: ...court by Code of Civil Procedure section 583.420 in favor of granting the motion at this time. “ ‘Although a defendant is entitled to the weight of the policy underlying the dismissal statute, which seeks to prevent unreasonable delays in litigation, the policy is less powerful than that which seeks to dispose of litigation on the merits rather than on procedural grounds.' ” (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562–...

Excerpt: ...ng Code Civ. Proc. section 1005. Further, moving parties failed to comply with the safe harbor provisions and failed to timely file and serve the Motion. CCP 128.7(c)(1) describes the 21‐day safe harbor as precluding the filing of the motion until at least 21 days has passed since service of the motion. Therefore, the October 8, 2021 correspondence threatening a motion does not constitute service of the motion and did not trigger the 21‐day s...

Excerpt: ...s have sent emails back and forth, the efforts lack the sort of efforts at a good faith resolution called for by Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1439. “[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id.) Reaching the merits of the issues: Interrogatories 9‐11: These interrogatories seek the identity of employees that sought and/or received reimbursement for t...

Excerpt: ...ar to be in that exhibit. The Court notes that it is bound by Judge Sandhu's prior rulings. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4 th 368). On February 23, 2021, the Court granted the anti‐SLAPP Motion as to the conspiracy claim and, because a First Amended Cross‐Complaint had already been filed, denied the general Motion to Strike as moot. Because the facts proposed in a Second Amended Cross‐Compalint, while more detailed, essential...

Excerpt: ...rting evidence on the issues of negligence and causation. Specifically, the Declaration of Judy Schmidt, M.D. raises disputed factual issues with regard to whether the Defendant's alleged failures in rendering treatment to Plaintiff's decedent fell below the standard of care and proximately resulted in the patient's death. (See Plaintiff's evidence in response to UMFs 10‐13 (Issue 1) and UMFs 2, 13‐17 (Issue 2). ...

Excerpt: ...rbitration clause complies with the requirements of Health and Safety Code section 1363.1. The arbitration clause binds the enrollees and their heirs to the arbitration clause as long as the arbitration clause was disseminated to enrollees and prospective enrollees. (Medeiros v. Sup. Ct. (2007) 146 Cal.App.4th 1008, 1017; Kuntz v. Kaiser Found. Hosp. (2021) 62 Cal.App.5th 1135, 277 Cal.Rptr.3d 271, 281‐282; Ruiz v. Podolosky (2010) 50 Cal.4th 8...

Excerpt: ... to declare Plaintiff Harpreet Dhaliwal a vexatious litigant. Code of Civil Procedure section 391.6 states (in pertinent part): “Except as provided in subdivision (b) of Section 391.3, when a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished, ...

Excerpt: ... that the causes of action for defamation and fraud must each be pled with specificity, and that the cross‐complaint fails to meet that standard. (See, e.g. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.”]; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612 [discussing pleading rules for defamation claims].) It also appears that each cause o...

Excerpt: ... and reminds plaintiff that elder abuse must be pled with specificity. At present, this court is having difficulty seeing how the decedent's final fall was the result of “abuse” or “neglect” within the meaning of the Elder and Dependent Adult Civil Protection Act because the complaint admits that by that time the facility had provided a shower chair and staff was present. The cause of action for wrongful death is also uncertain, because i...

Excerpt: ...se of action, as alleged by Plaintiff in his capacity as the decedent's successor‐in‐interest. To the extent that the pleading appears to allege the subject (First) cause of action by Plaintiff in his individual capacity, the law does not support such a claim in this context. Moreover, Plaintiff appears to concede this point in the opposition brief. Therefore, the demurrer is sustained without leave to amend on that limited issue. (b) The Cou...

Excerpt: ...s that plaintiff's injuries were caused by bedbugs, but that fact is not in dispute. Mr. Brown's declaration opines that defendant must have been negligent but states no basis for that opinion. It therefore cannot meet plaintiff's burden in opposition on summary judgment. “An expert's speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. [Citations.] Plai...

Excerpt: ...same as previously deposed because a PMK is not a deposition of the same person, but rather, a deposition of the non‐natural person. (Cal. Civ. Pro. 2025.230.) Regardless of how long the depositions of the individuals took, there is no time limit on a PMK deposition. (Cal. Civ. Pro. 2025.290(b)(5).) Additionally, even though the same documents were requested and produced during written discovery, they are authorized to be re‐requested under t...

Excerpt: ...similar pain for at least two years but he presented on May 27, 2018 because the pain was different and severe. (UMF #3.) Dr. Kanu performed a physical exam and ordered an ultrasound. (UMF ## 4‐6.) There was decreased but not absent vascularity and the radiologist noted it was “concerning for testicular torsion.” (UMF ##8‐9.) Dr. Kanu's report notes he considered epididymitis but his overall clinical impression was a right testicular tors...

Excerpt: ... Plaintiff wishes to continue this hearing, the Court will grant such a request. Unlike most discovery disputes, the Court cannot ignore evidence supporting privileges related to the attorney‐client relationship. The Court has received five separate exhibits under seal. The Court finds that Exhibit E is privileged as it appears responsive to attorney input. The July 24, 2018 text message chain between Cortnie Carmack, Mercedes Carter, and JB Ma...

Excerpt: ...r on May 15, 2020. (FAC at ¶¶ 6, 42.) Within one month of the purchase, it started to have “major powertrain defects” which led to a transmission replacement. (FAC at ¶¶ 8, 43.) The vehicle continued to have problems and by February 2021, it had been out of service for more than 30 days. While the First Amended Complaint also refers to a separate service and repair agreement, it alleges that these defects, replacement, and failure to repa...

Excerpt: ...Perez, in Her First Amended Complaint – GRANTED. a) Defendant's moving papers – including his separate statement of undisputed material facts, his declaration, the declarations of Kaitlin E. Showerman and Armando Flores, and the exhibits attached thereto – demonstrate that Defendant is entitled to summary judgment. Where a party has made a prima facie showing that he is entitled to summary judgment, it "causes a shift, and the opposing part...

Excerpt: ...pon which is sought summary adjudication.) UMF No. 14, states, essentially that the 2006 Prothers Agreement carved out a portion of the [property at issue herein] to be treated differently, stating (and the Court is paraphrasing here in an attempt to be clear): Prothers shall retain grazing rights … [on the property in question]. This description of the “carve out” is not necessarily accurate, as noted by the Defendants in their opposition ...

Excerpt: ...ng benefits from the decedent. After the decedent suffered a stroke and was hospitalized, Defendant allegedly took property as husband and wife with a right of survivorship. (First Amended Complaint at Paragraphs 40 and 44.) Defendant allegedly caused real property in an irrevocable trust to be sold and then allegedly appropriated the funds. (First Amended Complaint at Paragraph 49.) The First Amended Complaint also alleges that Defendant benefit...

Excerpt: ...tition for Writ of Mandate and directing Respondent to notify the Department of Justice that the reports of child abuse filed with it involving Petitioners have been determined to be “unfounded” and request Petitioners' immediate removal from California's Child Abuse Central Index (CACI) database. In addition, the Court would issue a writ directing Respondent to update the Child Welfare System/Case Management System (CWS/CMS, CWS‐CARES) to ...

Excerpt: ...ynne's Motion to Deem Requests for Admission Admitted and Request for Monetary Sanctions is GRANTED and unopposed. The Requests for Admission, Set One, served on Plaintiff Ernest Latta on or about March 25, 2021, are hereby DEEMED ADMITTED. Defendant Sharon Wynne is awarded mandatory sanctions pursuant to Code of Civil Procedure section 2033.280(c) in the amount of $335. Plaintiff Ernest Latta is directed to pay the monetary sanctions directly to...

Excerpt: ... First Amended Complaint; c) Defendant Sofia‐Esther Marquez's Motion for Summary Judgment or, in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Arnulfo Garibay, in his First Amended Complaint; d) Defendant Cuauhtemoc Torres Marquez's Motion for Summary Judgment or, in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Maricela...

Excerpt: ... (UVTA) and demurrer 8 – to the second UVTA “count” ‐ are OVERRULED. The first and second counts state facts sufficient to constitute a cause of action under the UVTA. Demurrers 4, 9, 14 and 19 – alleging the complaint is “uncertain” because Plaintiff erred in naming “Robert Carlson” instead of “Robert Crabtree” a handful of times – are OVERRULED. The error does not render the complaint uncertain in the manner required by ...

Excerpt: ...intiff has failed to meet his burden in this regard and that no material factual dispute exists with regard to the issue in contention, i.e. the potential for liability on the part of Defendants for the accident at issue in this case. After review of the moving and opposing papers and evidence, including the deposition testimony of Ms. Lupekha and the declaration of Ms. Joiner, the Court concludes that the undisputed evidence reveals that Defenda...

Excerpt: ...here was a settlement agreement in place and it was being completed. The current motion and sworn declaration claim that Defendant was in breach of the contract and that the $2,000 paid on June 7, 2021 – one day before the declaration – was correctly applied to the full amount due. These assertions seem to be at odds with each other. The Court anticipates asking clarifying questions and requires counsel appearing for Plaintiff to be able to a...