Excerpt: ...ity. The Court is unable to replicate Plaintiff's calculations as to the taxable amount claimed in total matching the taxable amount claimed in the individual claims. Defendant's zeal in pointing the amount unchallenged leads the Court to suspect it also could not replicate the math. In their opposition, Defendant filed a prior motion to tax costs in another case filed by Plaintiff's Counsel. The Court strikes this portion of the pleading. It may...

Excerpt: ...as demonstrated that Defendant's responses to Form Interrogatories, Set One, Nos. 16.2, 16.3, 16.4, 16.5, 16.6, and 16.10 do not comply with the requirements of Code Civ. Proc. §2030.220. Despite the possibility that later‐acquired discovery may further inform and support Defendant's contentions in the case, the Code requires that the responding party provide responses that are as complete as possible based on the information that is reasonabl...

Excerpt: ...enter [“Emanuel”] in Turlock for a complaint of right testicular pain. (Undisputed Material Fact [“UMF”] #2.) Plaintiff reported intermittent 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 te...

Excerpt: ... of the instant settlement. In addition, the instant motion fails to disclose the date of re‐mailing of the 85 class notices that were initially returned as undeliverable; therefore, the Court is unable to determine whether those members had sufficient time to respond as set forth in the notice. Counsel shall be prepared to discuss these issues at the time of the hearing. Aside from the procedural issues identified above, and in the event they ...

Excerpt: ..., or the plaintiff continued to litigate after it clearly became so.” (Gov't Code, § 12965(b); Cal. Prac. Guide Employment Litigation (TRG 2021) Ch. 17‐G, § 17:1572‐1572.1 [effective 1‐1‐19, prevailing defendant in a FEHA action may recover costs and fees only if the court finds that the plaintiff's action was “frivolous, unreasonable, or groundless,” etc., regardless of whether the plaintiff rejected a statutory offer to compromi...

Excerpt: ...ne, meaningful, and consistent with the State's goal of benefitting the public through enforcement of its labor laws. Specifically, the motion lacks a discussion of the reasonableness of the proposed settlement as compared to the potential maximum and practical liability on the part of Defendant herein. For example, the motion fails to discuss the estimated potential recovery of penalties for the various Labor Code violations alleged in the Compl...

Excerpt: ...nia (1995) 33 Cal.App.4th 1767, 1773 fn. 2 [“We may properly take judicial notice of these documents. However, we remind respondent we do not take judicial notice that everything contained in these documents is true”], citing Shaeffer v. State of California (1970) 3 Cal.App.3d 348, 354.) When considered in the context of the allowable use of judicial notice to contradict the allegations of the pleadings that otherwise must be accepted as true...

Excerpt: ...tters properly pleaded as true. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) The allegations are liberally construed and taken as a whole. (Cal. Civ. Pro. §452; Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98.) The demurrer, then, tests the sufficiency of the allegations as a matter of law. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) Turning to the operative allegations, the First Amended Complaint identifies Defendant Greff as De...

Excerpt: ...property and the reasons therefore and facts demonstrating probable cause for Plaintiff's belief that the subject equipment is located at the address set forth in the application. (Code Civ. Proc. §512.010(a)(2),(4).) Plaintiff shall be prepared to present admissible evidence on these issues at the time of the hearing. In addition, the application does not contain admissible evidence establishing the purported value of the items sought to be rec...

Excerpt: ...ts made representative claims supporting an agency relationship after service. b) DENIED, without prejudice. The declaration has now been resubmitted with an appropriate signature block (a well‐established requirement), but the source of the underlying facts leading to belief is not provided. Complaints based on information and belief are permitted when the basis of the information and belief is clearly provided. (See Gomes v. Countrywide Home ...

Excerpt: ...) 162 Cal.App.4th 343, 364.) Since the existence of the verified complaint and cross‐complaint in the consolidated action is irrelevant to the demurrer to the First Amended Complaint, the Court declines to take judicial notice. The Court finds that while the First Amended Complaint alleges various medical and debilitating conditions, it fails to sufficiently allege facts that Defendant Credit Union knew or should have known of those medical or ...

Excerpt: ...opinions of counsel? 3. Does the deposition transcript of Cortnie Carmack establish whether some or all of her emails are privileged or not privileged? 4. Do lawyers review all of the items that are alleged to be prepared for the legal department? The Court may have follow‐up questions. To the extent that the privilege log and further filings do not adequately clarify the facts, the court lacks authority to order production. (See Catalina Islan...

Excerpt: ... part and DENIED in part. The Court DENIES Defendants' motion to the extent it requests “correction” of the arbitrator's award and GRANTS Defendants' motion in all other respects confirming the arbitrator's Final Award as follows: Arbitral finality is a core component of the parties' agreements to submit to arbitration. As a result, this Court is generally powerless to review the arbitration awards for errors of fact or law, even when those e...

Excerpt: ...selection clauses, such as the one at issue here (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496 (Smith)). Rather, forum selection clauses are generally enforced “in the absence of a showing that enforcement of such a clause would be unreasonable.” (Ibid..) “Although [plaintiff] relies upon the factors of inconvenience and expense of a[n Illinois] forum, both [plaintiff] and [defendants] reasonably can be held to...

Excerpt: ...o monetary sanctions and submitting to deposition. Further, the Court finds that Plaintiff has engaged in a willful pattern of deliberate non‐compliance and obfuscation with the Court's procedural orders regarding prosecution of the action with due diligence and with the Court's orders regarding discovery, resulting in a prior order to show cause re dismissal where the Court allowed Plaintiff a reprieve after admonishing that continued obstruct...

Excerpt: ...his action. This court therefore accepts the guidance from the Court of Appeal that the previous award appeared to include fees that were noncompensable, and this court accepts counsel's calculation that 20 percent of the time in this case was devoted to the claims that were determined to be noncompensable on appeal. This court thereby reduces the previous award by 20 percent and awards to the City of Patterson attorney fees in the amount of $538...

Excerpt: ... MD, Erik Lacy MD, Rex Adamson MD, Ricky Bassi MD, Rohini MD, Marney Fern, Cheryl Harless, Harvey Palitz MD, John Pfeffer MD, & Randy Winter MD's Demurrer to Complaint – SUSTAINED, with leave to amend; c) Defendant Hospitalists of Modesto Medical Group, Inc., Arun Manoharan, MD, Swapna Kamireddy, MD, Li Huange, MD, Otashe Nyoku Golden, MD, Vicoria Yehm MD, Qazi Muzaffar Mohsin MD, Patrick Wong DO, Natalie J Slowik MD, and Yan Li, MD's Motion to...

Excerpt: ...e was $6,500. There is no indication whatsoever that the amount was a total from two different sources/contributors. Nor is there a different attorney's name on the pleadings – the pleadings are signed by counsel bringing the current motion. The motion for acceptance of expenses is CONTINUED on the Court's own motion to November 18, 2021, at 8:30 a.m. On or before November 9, 2021, the guardian will provide a declaration signed under penalty of...

Excerpt: ...ty plans. See, e.g., Peterson v. Bank of America Corp. (2014) 232 Cal.App.4th 238, 255 [suit by hundreds of customers borrowing money from Countrywide “easily a complex case” given the number of parties and volume of documents]; Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 835 n.8 [“the coordinated actions with which we are here concerned are ‘complex' within the meaning of this rule only because of the large number of repr...

Excerpt: ... Defendant Motor Parts Distributors Inc.'s Motion to Bifurcate; d) Plaintiff's Motion for Bifurcation and for Order Granting Priority Over Plaintiff's Main Case; e) Cross‐Defendant/Cross‐Complainant Express Services, Inc.'s Motion to Bifurcate Trial – Motion (a)—DENIED. While the Court is not inclined to reject or strike moving party's separate statement of undisputed facts, opposing party's objection is well‐taken in that the manner in...

Excerpt: ...to provide the contracted insurance coverage. (First Amended Cross‐Complaint [“FACC”] at ¶¶ 40, 48.) While Cross‐Complainants paid all premiums as they became due (FACC at ¶ 49), they were actually issued a “Ghost Policy,” which Cross‐Complainants define as “a term used to describe a sham insurance policy that is not backed by reserve funds as required by law.” (FACC at ¶ 39, 11:6‐7.) Cross‐Complainants allege it contrac...

Excerpt: ... Oppose Cross‐Defendants' Motion for Summary Judgment/Adjudication on the Cross‐Complaint There are several claims in the briefing as to why Plaintiff should have standing. Doctor's Medical Center of Modesto, Inc. (DMC) argues: 1. The language of the statute permits intervention of this sort generally; and 2. Plaintiff's rights will be impaired if he is not allowed to oppose the MSJ. Plaintiff does not make the statutory construction argument...

Excerpt: ...ndant, as the moving party, has failed to demonstrate sufficient grounds to justify the Court's imposition of a stay on the instant matter under the circumstances set forth in the moving papers. Specifically, the Court notes that the actions are not substantially identical with regard to the parties or the claims asserted, as the instant matter encompasses a broader putative class and includes multiple causes of action based on Labor Code violati...

Excerpt: ... broad and includes matters that are reasonably calculated to lead to the discovery of admissible evidence. Here, moving parties sufficiently establish the relevance and discoverability of the desired information as bearing on issues related to vicarious liability, comparative fault and indemnity. Accordingly, the deponent is ordered to respond to the subject questions but any further deposition is expressly limited to the matters raised in this ...

Excerpt: ...d opposing papers whether certain of the disputed discovery requests have become moot with the recent submission of the Second Amended Complaint. Therefore, the hearing is continued and counsel are directed to continue to meet and confer in good faith in an attempt to resolve or narrow the issues identified in the motion. The parties are further instructed to submit a Joint Status Statement which describes these efforts and also clearly identifie...

Excerpt: ...nder the relevant agreement. Therefore, the demurrer is SUSTAINED as to the First Cause of Action with regard to both Cross- Defendants. As Cross-Complainants have not demonstrated the existence of additional facts supporting the viability of this claim, the Court denies further leave to amend in this regard. With regard to the Second and Third Causes of Action for Implied Indemnity and Equitable Indemnity, the Court notes that the previous demur...

Excerpt: ...arez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 643.) On this motion, plaintiff therefore has the burden of showing that an exception to Privette applies. (Ibid.) Gonzalez v. Mathis (2021) 12 Cal.5th 29 (Gonzalez), on which this court requested supplemental briefing, held that there are only two exceptions to Privette such that, according to the Gonzalez court “a hirer may be liable when it retains control over any part o...

Excerpt: ...ords. At the outset, the Court finds that the total amount of hours claimed in the moving papers is not consistent with the total amount of hours calculated from the information set forth for each billing attorney in Mr. Daghighian's declaration. Based on the lodestar calculations set forth for each biller by Mr. Daghighian, the Court finds that the appropriate amount of claimed hours totals only $38,620. Therefore, the Court begins its analysis ...

Excerpt: ...stments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380.) The SAC and its attachments show that there was a section 1031 contingency in favor of the demurring defendants, and the SAC does not plead that this condition was satisfied, such that the SAC fails to plead that the demurring defendants ever acquired a duty to perform. The court therefore SUSTAINS the demurrer to the first cause of act. It appears plaintiff's complaints about t...

Excerpt: ...ted factual matters or hearsay assertions not within exception. (Evid. Code, §§ 452(c), 453.) The documents speak for themselves and establish matters of corporate disclosure required by law and the applicable dates thereof. Nothing more is required for purposes of the Court's tentative ruling. Regarding the merits, Plaintiff's Complaint asserts causes of action including, as pertinent here, breach of contract and breach of promissory note, aga...

Excerpt: ... (White v. Lieberman (2002) 103 Cal.App.4th 210, 220.) Therefore, the Court finds that Defendant has met the initial burden of demonstrating that the claims asserted in Plaintiff's Amended Verified Claim arise out of protected activity, i.e. litigation‐related conduct. The burden then shifts to Plaintiff to demonstrate the probability that she will prevail on the merits of the subject causes of action. The Court finds that Plaintiff has failed ...

Excerpt: ...v. Lieberman (2002) 103 Cal.App.4 th 210, 220.) Therefore, the Court finds that Defendant has met the initial burden of demonstrating that the claims asserted in Plaintiff's Amended Verified Claim arise out of protected activity, i.e. litigation‐related conduct. The burden then shifts to Plaintiff to demonstrate the probability that she will prevail on the merits of the subject causes of action. The Court finds that Plaintiff has failed to meet...

Excerpt: ...ts Amirfar and David arise out of protected activity, i.e. reports to law enforcement agencies. The burden then shifts to Plaintiff to demonstrate the probability that he will prevail on the merits of the subject causes of action. The Court finds that Plaintiff has failed to meet his burden and has failed to submit any admissible evidence beyond his own self‐ serving allegations in that regard. Therefore, the Court finds that the following port...

Excerpt: ...lays in this case (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939–940 [“The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.”]), and that prejudice to defendants would likely occur if the amendment were allowed. (See, e.g., Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176 [“[i]It would be p...

Excerpt: ...e extent the facts alleged in the complaint conflict with the facts contained in the exhibits attached to the complaint, the facts contained within the exhibits control. (Plastering v. Richmond Am. Homes (2007) 153 Cal.App.4th 659, 665.) The facts alleged in the First Amended Complaint do not contradict those identified in Exhibit D. For example, it is not expressly stated that the permanent structures alleged in Paragraph 19 are limited to the a...

Excerpt: ...ed by the incomplete effort to meet and confer. Plaintiff is correct that this need not be dispositive, but the failure to engage in the process in a meaningful way does not comport with best practice. The Court anticipates that the parties will discuss and resolve or narrow the issues prior to any re‐filing. 2. DENIED as untimely. A party has 45 days to bring a Motion to Compel Further Responses, unless an extension has been agreed upon by the...

Excerpt: ...n to which the litigation privilege was previously raised is improper and an abuse of the discovery process for which sanctions are warranted. As to the text messages, Defendant Moody technically, albeit in the narrowest sense possible, complied with the September 1, 2021 Order by contacting Metro PCS and asking if the text messages could be retrieved. However, Plaintiff's counsel aptly noted in the further meet and confer process that the custom...

Excerpt: ...lisilda. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 [“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense.”].) As plaintiffs failed to show that Felisilda is meaningfully different from this case, the court finds it must grant the pe...

Excerpt: ... that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding. Plaintiffs' Request for Judicial Notice in support of their motion is GRANTED in part...

Excerpt: ...v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in...

Excerpt: ...Parents) only on the Fourth Cause of Action for violation of Government Code section 11135. SUSD moves for summary judgment of this cause of action on the basis that section 11135 et seq. only provides for a private right of action for equitable relief, not monetary damages, as a matter of law. (Gov't Code § 11139.) SUSD is correct. Moreover, SUSD has met its burden to demonstrate that there is no triable issue of material fact that Parents were...

Excerpt: ...posed second amended complaint (SAC) is insufficiently specific and therefore allows plaintiff to file the SAC. (See, e.g., Tarmann v. State Farm Mutual Auto. Insurance Co. (1991) 2 Cal.App.4th 153, 158 [ the “requirement of specificity is relaxed when the allegations indicate that ‘the defendant must necessarily possess full information concerning the facts of the controversy' [citation] or ‘when the facts lie more in the knowledge of the ...

Excerpt: ...the merits. In either case, the motion is stricken. The merits have been thoroughly discussed in prior rulings. (The Court does not address other procedural issues, including time of service issues.) The Court seriously considered – but rejected - the request for sanctions sought by Defendant. The “safe harbor” provisions of Code of Civil Procedure section 128.7 have not been met, and the Court is not eager to generate more trial-level liti...

Excerpt: ...ranted in the amount of $800 jointly and severally, to be paid within 10 days. As to the requests for production, The Court notes preliminarily that the Thompson declaration provides a substantial amount of the information the Court was seeking, and that Mr. Thompson appears qualified to provide that information. The parties should be prepared to address: 1. A description of the “time records” sought and whether there is any claimed burden to...

Excerpt: ...Plaintiff's Motion for an Order Deeming the Truth of Facts and Matters in Request for Admissions, Set One, Propounded to Defendant, Maria Islas; Request for Monetary Sanctions of $3,035 – Motions a), b), c) and d)—SANCTIONS DENIED. Pursuant to the Minute Order of August 31, 2021, motions (a.), (b.) and (c.) were granted, in part, and continued to the present with respect to monetary sanctions against Defendant Islas, only, with the opportunit...

Excerpt: ... causes of action against Doctors Medical Center[“DMC”]: i) Medical Malpractice; and ii) EMTALA violations. DMC's Cross-Complaint alleges five causes of action: i) partial indemnity; ii) full equitable indemnity; iii) contribution; iv) declaratory relief; and v) apportionment of fault against Cross-Defendants, Dr. Paulo Murrieta and CEP America. The latter two move for summary judgment, or in the alternative, summary adjudication, on the basi...

Excerpt: ...ourts may consider the consequences which might flow from a particular interpretation and must construe the statute with a view to promoting rather than defeating its general purpose and the policy behind it.” ' ” (Pacific Merchant Shipping Association v. Newsom (2021) 67 Cal.App.5th 711, * 7.) ‘“ ‘The purpose of [Code of Civil procedure section 1030 (section 1030)] is to enable a California resident sued by an out-of-state resident “...

Excerpt: ...ttlement agreement. Therefore, the Court finds that the circumstances supporting entry of a preliminary injunction preventing Petitioner from “selling, transferring, or otherwise encumbering” the real property located at 10501 Alvarado Road, Oakdale, California no longer exist. The preliminary injunction shall therefore be dissolved. With regard to the other pertinent points made by the parties in their briefing, the Court finds as follows (a...

Excerpt: ...016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corp...

Excerpt: ...ally: The Court notes that the October 2020 demurrer involved John Doe's allegations while the May 2021 and instant ruling pertains to Ms. Miramontes, who is in a different position and therefore, results in a different outcome. The Fourth Amended Complaint added allegations pertaining to what Ms. Miramontes learned about John Doe's treatment. This still does not constituted intentional infliction of emotional distress when she was not present fo...

Excerpt: ... fairness and adequacy of the settlement amount, such that the Court is unable to conclude that the proposed settlement provides for relief that is genuine, meaningful, and consistent with the State's goal of benefitting the public through enforcement of its labor laws. Specifically, the motion lacks a discussion of the reasonableness of the proposed settlement as compared to the maximum potential liability on the part of Defendant herein. In fac...

Excerpt: ...al.App.4th 873, 885. Additionally, attorneys hired by a trustee to aid the trust are entitled to reasonable fees paid from the trust assets (Kasperbauer v. Fairfield (2009) 171 Cal.App.4th 229, 235) and the Court has inherent equitable authority to sanction a beneficiary when the beneficiary brings or maintains an unfounded suit against the trustee. (Emphasis the Court's.) Here Petitioner and her counsel, in failing to notify Respondents that Pet...

Excerpt: ...), and neither party appears to object to this approach. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) Plaintiff's meet and confer efforts on this motion were adequate because counsel says he called to obtain alternate deposition dates. (Code Civ. Proc., § 2025.450, and subd. (b)(2).) The court grants the motion and compels the City of Ceres to produce its PMK for deposition within 30...

Excerpt: ...ive conduct, irrespective of whether such communications may be barred from imposing liability as a matter of affirmative defense. (Shade Foods v. Innovative Products Sales & Marketing (2000) 78 Cal.App.4th 847, 915, 93 C.R.2d 364 [litigation privilege did not bar introduction of evidence involving settlement offers or answers to interrogatories to prove bad faith in action against insurer].)” (5 Witkin, Summary 11th Torts § 660 (2021); see al...

Excerpt: ...upported by facts and evidence, albeit disputed. Both experts stated their opinions were “within a reasonable degree of medical certainty [or probability].” Both experts cited the standard of care. The Court has discretion to consider Plaintiff's additional brief discussing the failure to address UMF 22. Plaintiff is correct that the Court has discretion to consider the overlooked issue, despite its importance to the case. (Leep v. Am. Ship M...

Excerpt: ... was a car provider which was involved in renting cars to people, inclusive of acting as a middleman between individuals who owned GM cars and persons wishing to rent them. In this case, Maven rented out a car owned by a different General Motors subsidiary, GCar Titling Limited. Maven provided a car to Logan Shapiro in exchange for a fee. Shapiro got in a collision, injuring Plaintiff, who was in another vehicle. For the purposes of this motion, ...

Excerpt: ...leadings at which they are directed, the Court is of the initial impression that 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 abatement via voluntarily dismissal of the other three cases as a complete merger thereof. A master complaint would relate back to the f...

Excerpt: ...; d) Plaintiff's Motion for an Order Deeming the Truth of Facts and Matters in Requests for Admission, Set One, Propounded to Defendant, Maria Islas; Request for Monetary Sanctions of $3,035 – Motions (a.), (b.) and (c.)—GRANTED, in part; CONTINUED, in part; Motion (d.)—CONTINUED, on the Court's motion. With regard to motions (a.), (b.) and (c.), Defendant Islas is ordered to provide complete and verified responses without objections other ...

Excerpt: ...ws: 1. Judge Howard Broadman (ret) is appointed as referee for all purposes related to discovery in this action. Judge Broadman's address and telephone number are as follows: 300 N. Willis Street, Visalia CA 93291 (559) 738-1800. 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 matter; the demonstrated ...

Excerpt: ...fails to allege sufficient facts to support the stated claim, and this argument is more appropriately raised on demurrer. (Code Civ. Proc. §430.10(e).) However, the Court also has authority to consider such a motion as a judgment on the pleadings under such circumstances. (Pierson v. Sharp Memorial Hospital Inc. (1989) 216 Cal.App.3d 340, 342-343.) In either case, the Court finds that Defendants have failed to demonstrate that the challenged cla...

Excerpt: ...nicate with all necessary parties and no discussion could occur because the attorney who was contacted was on vacation. (Code Civ. Proc., § 2034.250, subd. (a).) In part because of the weakness of the meet and confer efforts and in part because of the rest of the factors discussed below, the court finds there is “good cause” to alter the expert witness designation dates set forth in Code of Civil Procedure section 2034.230, subdivision (b). ...

Excerpt: ...s discovered that its ruling on the motion concerning the responses to Requests for Admissions, Set Two was incomplete and requires correction. Specifically, the Court's denial of the motion was intended to be directed only to Requests 20-23 and 35. While the motion also sought to compel further responses to Requests 36-47, the ruling was not directed at those requests and was incomplete in that regard. Therefore, the Court finds that the relief ...

Excerpt: ...See, e.g., Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations...

Excerpt: ...terrogatories 16.2 – 16.5 and rules as follows: Plaintiff has demonstrated that Defendant's responses do not comply with the requirements of Code Civ. Proc. §2030.220. Despite the possibility that later-acquired discovery may further inform and support Defendant's contentions in the case, the Code requires that the responding party provide responses that are as complete as possible based on the information that is reasonably available. Therefo...

Excerpt: ...ry. (Cal. Rules of Ct., rule 3.1345(a)(1)-(5), (b).) The Court sees no purpose to its utilization here and this objection is overruled. The subject discovery consists of 424 separate Requests for Admissions, Form Interrogatory 17.1 that, itself, contains three subparts for facts, witnesses and documents, and a blanket Request for Production for any and all documents identified in 17.1. The end result is that the propounding party is effectively s...

Excerpt: ...e parties appear to be in agreement that responses to certain of the requests at issue turn on the implementation of a stipulated protective order regarding the nature of the materials to be disclosed; therefore, they are instructed to continue their efforts to reach a resolution of this issue which may, in turn, resolve certain of the arguments herein. Moreover, Defendant has demonstrated that some of the requests at issue have not previously be...

Excerpt: ...d Banke were not employees or agents of the hospital during the time period at issue in this action; (2) That the staff employed by the hospital met the standard of care in their treatment of Plaintiff; and (3) That no act or omission of the staff employed by the hospital caused or contributed to the injuries claimed by Plaintiff. The burden then shifts to Plaintiff to submit admissible evidence demonstrating the existence of triable factual disp...

Excerpt: ...September 2018 for purposes of Code of Civil Procedure section 761.020, subdivision (d). Because the other causes of action are valid and because plaintiff alleges the acts of which he complains were performed in conjunction with a licensed realty transaction, the court overrules the demurrer to the fourth cause of action under Business and Professions Code section 17200, as well. ...

Excerpt: ...t Law, Set One, and Request for Production of Documents, Set One; and Request for Monetary Sanctions – a) GRANTED, in part. The order to compel responses to the subject discovery without waived objections is granted. Defendant shall serve responses without the asserted objections within ten (10) days of this order. In light of Defendant's filed Notice of Non-Opposition, the amount of sanctions awarded will be reduced to Six Hundred Twenty-Five ...

Excerpt: ...UMF 3.) Plaintiff sustained serious burn injuries when he picked up the burning frying pan with his bare hands and took the pan outside. Plaintiff's Complaint alleges two causes of action against moving defendants: general negligence, and premises liability. Premises liability is a specific form of negligence: the owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to a...

Excerpt: ...ure to respond to discovery was “willful” (see, e.g., Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994), or that an order dismissing the complaint would not “go further than is necessary to accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613). The request for terminating sanctions is therefore DENIED. The court orders plaintiff to reimburse defendant Janelle Lynn Clowers the $300 p...

Excerpt: ... documents in support of the Defendant's own affirmative defenses and that Defendant's investigation is “ongoing.” (Liberty Mutual Fire Insurance Company v. LCL Adm'rs, Inc. (2008) 163 Cal.App.4th 1093.) Accordingly, Plaintiff's motion is granted, in part, and Defendant shall provide further substantive responses within two (2) weeks of this Order. That said, no opposition was filed, Plaintiff did not file a reply, and Defendant's counsel of ...

Excerpt: ...ir names removed from the CACI under the traditional mandamus statute, Code of Civil Procedure section 1085. “ 'To obtain [this type of] relief, a petitioner must demonstrate (1) no “plain, speedy, and adequate” alternative remedy exists [citation]; (2) ‘‘ ‘a clear, present ... ministerial duty on the part of the respondent' '' ; and (3) a correlative ‘ '‘clear, present and beneficial right in the petitioner to the performance of ...

Excerpt: ...7 Cal.4th 1097, 1104–1105 [recognizing that FEHA exemption of religious/non-profit entities does not preclude public policy claim under Cal. Const., art. I, sec. 8]; Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 232–233 [trial court erred in sustaining defendant's demurrer as to plaintiff's wrongful termination claim based on defendant's retaliation in violation of Section 8's policy against race and sex discriminati...

Excerpt: ... of jurisdiction prevents this Court from adjudicating the matters stated therein. In addition, the pleading fails to state facts constituting a cause of action and is uncertain. (Code Civ. Proc. §§430.10(c),(e),(f).) Under the circumstances, and in view of the lack of opposition, it is clear that Plaintiff is unable to amend her claim to state a viable cause of action herein. Therefore, the demurrer is SUSTAINED, without leave to amend. 2. The...

Excerpt: ...is reviewed de novo. (Gerwig v. Gordon (2021) 61 Cal.App.5th 59.) The Court addresses the legal contentions first. Petitioner's Objection to Mr. Keokot's Testimony on the Second Blood Test is SUSTAINED. The same objection was raised at the administrative hearing and overruled. The Hearing Officer's ruling was a harmless error. In Borger v. DMV (2011) 192 Cal.App.4th 1118, the Court held that testimony that a blood-alcohol testing instrument with ...

Excerpt: ...se as available dates. 2. GRANTED as to the Belaire-West Notice for RFP 10: the disputed sentence shall state “You have no obligation to speak with the attorneys for Plaintiff or Defendant.” The cases Defendant cites are not precisely applicable, and the objected-to line does not say that employees have no obligation to speak to their employer generally. McGrory v. Applied Signal Technology Inc. (2013) 212 Cal.App.4 th 1510 relates to Cal. Go...

Excerpt: ...th Causes of Action and has identified material factual disputes with regard to the elements of each of the challenged claims, i.e. whether her termination was substantially motivated by discriminatory and/or retaliatory animus under FEHA and/or CFLA; whether Defendant's attendance policies interfered with Plaintiff's rights under CFRA, and whether Defendant's termination of Plaintiff violated public policy as a result of unlawful acts under FEHA...

Excerpt: ...oner filed this motion. It is inappropriate to submit additional material related to a matter under submission without leave of court. Further, although filed prior to any announcement of the Court's decision, Petitioner's motion appears to be a veiled motion for reconsideration. Simply put – the law does not authorize Petitioner's motion. Although the Court considered making an additional award of attorneys' fees and costs to Respondents for b...

Excerpt: ...in part; MOOT, in part. a)While Defendant has demonstrated that Plaintiffs failed to appear for their properly noticed depositions, the motion fails to comply with Code Civ. Proc. §2025.450(b)(2) in that Defendant does not demonstrate any efforts to contact Plaintiffs' counsel to discuss the non-appearances. Therefore, the motion is DENIED. Counsel are admonished regarding the Court's disfavor for the practice of resorting to law and motion proc...

Excerpt: ...to “meaningfully separate the attorney's fees incurred in litigating contractual claims from the attorney's fees incurred in litigating the inverse condemnation claim,” as required by both Carter and the court that heard defendants' appeal from the original attorney fees order. (See, e.g., (City of Patterson v. Patterson Hotel Associates (Jan. 11, 2019, No. F074038) at *7 [nonpub. opn.]).) Plaintiff has therefore failed to meet its burden on ...

Excerpt: ...gligence. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [property owner's duty inferred from assertion that defendant owned and managed property]; 4 Witkin, Cal.Proc.5th (2020) § 580.) Here, the complaint contains a single cause of action for premises liability. Defendant is not alleged to be negligent solely on the basis of ownership, but also on the basis that it negligently “maintained, managed and operated” said premises. But the ...

Excerpt: ...Set One to Paula Roberts – Nos. 1-5 - GRANTED. 5. Form Interrogatories - General, Set One to Paula Roberts – Nos. 8.2 – 8.7 - DENIED. Counsel shall serve further code compliant responses to the requests for production of documents and special interrogatories not later than August 13, 2021. Discovery is supposed to be self-executing. The Court notes a more productive and civil “meet and confer” process would likely have prevented the nee...

Excerpt: ...t. (Code Civ. Proc. §871.10(d).) However, the Court finds that the provisions of Code Civ. Proc. §871.10(e) apply to the above-described claim, such that after submission of the amended pleading the action must be stayed until November 1, 2021 as required by that statute. The motion is DENIED as against Defendant Cuevas. To the extent that the proposed amended pleading seeks to add a new defendant who was not previously included as a named or f...

Excerpt: ...Defendant has provided declarations that it has no revenue from California customers, no employees in the state, no office or place of business in California, no bank account in California, and is not a registered business entity in California. In short, the international shoe does not fit. Given the state of the evidence, providing time for discovery appears unproductive. This dispute also appears to be bound by Arkansas law. If the Court had di...

Excerpt: ...ply is limited to rebuttal of the opposition by its very nature. As such, without good cause and leave of court, new facts or evidence are not within the scope of a reply. Other procedural mechanisms exist for this purpose and, in this regard, the Court has granted the parties' stipulation to continue the trial date with a limited re-opening of discovery. Presumably, if the facts and evidence so warrant, Defendant will avail itself of the appropr...

Excerpt: ...action. (Nelson v. Anderson (1999) 72 Cal.App.4 th 111, 131; Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court further finds that Plaintiffs have offered adequate substantiation as to certain of the challenged costs but have failed to offer adequate substantiation as to other challenged costs. The Court acts within its discretion in determining whether costs are excessive and should be reduced. (Levy v. Toyo...

Excerpt: ... acquired].) Further, the complaint alleges all three statutory grounds. (Code Civ. Proc., § 1240.030; Complaint, ¶ 6-11.) Accordingly, the general demurrer is overruled. With respect to the special demurrer for uncertainty, the Possession & Use Agreement (agreement) explicitly contained an understanding that the “purpose of this Agreement is to allow [Plaintiff] to proceed with construction and operation of the Rail Facilities on the Parcel ...

Excerpt: ...t an order dismissing the complaint would not “go further than is necessary to accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613). The request for monetary sanctions is denied for noncompliance with Code of Civil Procedure section 2023.040. The notice of motion requests an amount of sanctions that is different from the amount requested in the supporting memorandum and declaration, so the declarati...

Excerpt: ... 3 rd and 6 th causes of action is SUSTAINED, with leave to amend. The Court finds that the pleading fails to state facts sufficient to support the stated causes of action and is uncertain. (Code Civ. Proc. §430.10(e), (f).) With regard to the 3 rd Cause of Action for Medical Battery, Plaintiff's opposition suggests an intent to proceed on a conditional consent theory, but the Second Amended Complaint does not sufficiently plead the elements of ...

Excerpt: ...e 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 failed to meet his initial burden with regard to the application of the recreational use immunity prescribed by Civ. Code §846. Defendant fails to submit evidence that Plaintiff Evan Mays was trespassing on Defendant Price's property or ...

Excerpt: ...re[s] a creditor wishing to invoke the doctrine to demonstrate the absence of a plain, speedy, and adequate remedy at law would protect against reverse piercing being used to bypass legal remedies.” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 223 (Curci).) Here, plaintiff still has an unsatisfied writ of execution and has not pursued remedies such as a charging order or wage assignment order. (Cf. Curci, 14 Cal.App.5th at p. 2...

Excerpt: ...d facts, Nos. 34 – 37, raise further triable issues of material fact. Moving party's evidentiary objections to opposing party's evidence are overruled: the Court sees no basis for requiring expert witness testimony as to non-scientific and non-technical matters of identifying products and components within the personal knowledge of the affiant; photographs of the subject chair and the component catalog are non-testimonial and have independent l...

Excerpt: ...cts sufficient to show why the City of Riverbank should be held liable for alleged torts of the independent contractor it hired to collect trash. The rule regarding this kind of liability is: “a private person who hires an independent contractor can be liable for an injury to an independent contractor's employee, even when the injury is proximately caused by an act or omission of the independent contractor, provided the private hirer (1) retain...

Excerpt: ...ary judgment granted upon submission of a judgment. a) With respect to plaintiff's first and second causes of action for discrimination and the fifth for retaliation, the court will use a “burden-shifting system [that] requires the employee first establish a prima facie case of . . . discrimination [on the basis of a protected category or retaliation as authorized by law]. If the employee does so, the employer is required to offer a legitimate ...

Excerpt: ...ief) Causes of Action. Factual Background This action arises out of Plaintiff's employment with Foster Farms. He started his employment on July 25, 2013. His employment was temporarily halted for a couple of months, but he otherwise remained a full-time employee until he signed a resignation letter in connection with his worker's compensation settlement on January 12, 2017. The worker's compensation case and the crux of the allegations in this ca...

Excerpt: ...r justification that such expenses were reasonable and necessary. (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1621; cf., Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30 [overnight messenger fees recoverable if reasonable and necessary].) The Court denies the motion to tax deposition costs in the amount of $866.60. The Bankruptcy proceeding in which the examination and transcript were obtained was directl...

Excerpt: ... face of the pleading or matters judicially noticed]; Deyo v Kilbourne (1978) 84 Cal.App.3d 771, 779 n2; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (TRG 2021) Ch. 7(I)-B, § 7:169 [defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence].) The Court grants Plaintiffs' request for judicial notice pursuant to Evidence Code section 452, subdivision (d), as unopposed and without ob...

Excerpt: ...as to Each Cause of Action and/or Related Issues Asserted by Plaintiff, Maricela Cuevas Perez, in His First Amended Complaint – CONTINUED, on the court's own motion, to October 29, 2021, at 8:30 a.m. in Department 24. The court finds it would be inappropriate to rule on a motion that could be dispositive as to plaintiff Garibay's pleading without notice to his conservator, and/or to any other person who will represent Garibay's interests in thi...

Excerpt: ...4, 95, 162-173, and 238-249 are stricken and have not been considered. The Court will also address the five “issues” for summary adjudication out of order and begins with Issues 2, 3, and 4, together. These individual “issues” do not dispose of the entire cause of action, an entire affirmative defense, or an issue of duty. (Cal. Civ. Pro. 437c(f).) As framed by the moving party, the issues explicitly seek adjudication on the issue whether...