Excerpt: ...red only by the extent the parties have agreed. (Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771.) An arbitration agreement contained within the employee handbook is generally enforceable, particularly when the acknowledgement form specifically refers to the arbitration agreement. (See, Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373.) Here, Defendant has demonstrated an arbitration agreement exists (within the employee handbook and ...

Excerpt: ...efendant Les Schwab Tire Center's Objections to Plaintiff's Requests for Production of Documents (RFPs), Set One; Request for Sanctions in the Amount of $2,860.00 from Defendant Les Schwab Tire Center and its Attorneys of Record, Vincent Castillo, Esq. and Allen Glaessner Hazelwood Werth - DENIED AS TO RFP NOS. 3, 4, 8, 17, 20, 21, GRANTED AS TO RFP Nos. 6, 10, 11, 14, 15, 16; d) Plaintiff Sandra Bunday's Motion to Compel Further Responses and to...

Excerpt: ...laintiff falsely accused defendant Silva of harassment or that she attempted to steal from her employer are subject to the ant-SLAPP statute, and the court does not see how those allegations could fall into one of the categories described by Code of Civil Procedure section 425.16, subdivision (e). The court must “disregard[]” those allegations and therefore makes no orders regarding them. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) ...

Excerpt: ...tion to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.”]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 [“We agree with the majority of courts holding that lack of diligence may be a ground for denying a request for a continuance of...

Excerpt: ...l rationale adopted by the Court in ruling that non-signatory enforcement of the arbitration agreement will be granted, and that such a bifurcated scope would entail a substantial risk of inconsistent, conflicting or even contradictory decisions between those claims decided by the arbitrator and those decided by the trier of fact in this case. (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 11; Marenco v. DirecTV LLC (2015)...

Excerpt: ...which has been ruled on by Judge Freeland. The Court cannot revisit those rulings. The First Cause of Action for abuse of process fails to state a cause of action because there is no allegation that any legal action was filed by Wells Fargo. Rather, the First Amended Complaint alleges nonjudicial foreclosure proceedings. This cause of action cannot be amended without contradicting the original and amended complaint. The Demurrer as to the First C...

Excerpt: ... for Admissions, Set Two (2); Request for Monetary Sanctions in the Amount of $1,750.00; and Request for Issue Sanctions Re Notice Against Defendant for Willfully and Fraudulently Concealing Evidence of Prior Incidents - DENIED; c) Plaintiff's Motion to Compel Defendant City of Turlock to Provide Further Responses to Requests for Production, Set Three (3); Request for Monetary Sanctions in the Amount of $1,750.00; and Request for Issue Sanctions ...

Excerpt: ...ause of Action, for Intentional Infliction of Emotional Distress (IIED), relies on authority where the employer's conduct consisted of “common supervisory actions.” The Court must accept as true the allegations properly pled by Plaintiff in deciding a pleading motion. As such, allegations that Defendants made derogatory comments directed to Plaintiff's weight and physical appearance, and that Defendants only hired females who met a certain �...

Excerpt: ...Objections: 1. To Paragraph 7 of Mr. Martin's expert declaration on the basis of lacks foundation. OVERRULED. Mr. Martin identified the rules at Paragraphs 13 and 15 and Exhibit D, referenced in Paragraph 4. As to misstating the evidence of the “photo,” OVERRULED. While the Court agrees the Declaration is misleading as to it being a still photograph, the videos from which the still was captured were introduced into evidence, to which there is...

Excerpt: ...er. (See, e.g., Id. at p. 1227 [“ ‘ “[W]hether an environment is ‘hostile”' or ‘abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' “].) The court declines to consider the contentio...

Excerpt: ...hibit and the exhibit contradicts the allegations of the complaint, “those in the exhibit are given precedence.” (Sarale v. Pac. Gas. & Elec. Co. (2010) 189 Cal.App.4th 225, 245.) Defendant requested judicial notice of the Conditions of Agreement [“COA”], to which Plaintiff seemingly concurs, or at least, does not object. The Court will take judicial notice of the COA. Both parties also seek judicial notice of various trial court or unpub...

Excerpt: ...OVID‐19 NOTICE: The Court encourages all attorneys and self‐represented parties in law and motion hearings to appear via Court Call. You may contact Court Call as follows: www.courtcall.com or call 888‐882‐6878. Please check in by 8:20 AM for the 8:30 AM calendar. To submit on a tentative decision, e‐mail the Court at [email protected] or by fax to Judge McKaig's secretary, Isabel Alarcon, at 805‐477‐ 8790. If a part...

Excerpt: ...y theory. (Cal. Civ. Pro. §452; Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 245; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The facts stated in a complaint and any exhibit attached thereto are presumed true when faced with an attack on demurrer. (Saxer v. Phillip Morris, Inc. (1975) 54 Cal.App.3d 7, 18; Cross-Talk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) Generally, California requires only a genera...

Excerpt: ...ees entirely, but exercises its discretion under Cal. Civ. Pro. Section 1033.5(a)(4)(D) to determine an appropriate cost. Dr. Allman's testimony is a more difficult subject. Efforts were made by both counsel to reduce the costs involved. Given the technical hurdles, Plaintiff's counsel was legitimately unable to generate a remote appearance despite the stipulation by counsel and agreement by the court. Dr. Allman's costs and fees were actually in...

Excerpt: ...vil complaints filed in other cases are sustained and the Court did not consider them. 1. Disability Discrimination in Violation of FEHA (First Cause of Action); Retaliation (Fourth and Seventh Causes of Action); Failure to Prevent Discrimination/Retaliation (Fifth Cause of Action); Wrongful Termination in Violation of Public Policy (Eighth Cause of Action) Both discrimination and retaliation claims are analyzed using the McDonnell Douglas shifti...

Excerpt: ...ject discovery requests were served by mail on April 30, 2021, as previously promised. However, the evidence submitted by the defense raises a significant issue with regard to the veracity of the Plaintiffs' claims in this regard. Moreover, the defense has demonstrated that the opposition herein was not served in compliance with the requirements of Code Civ. Proc. §1005(c), despite the attestation contained in the proof of service attached there...

Excerpt: ...is code section in his opposition. Plaintiff asserts in his Third Amended Complaint that based on the conduct reported, the county was necessarily negligent in performing a mandatory duty to impose placement. Becerra v. County of Santa Cruz (1998) 68 Cal.App.4 th 1450 holds that placement decisions in the foster care realm are subject to immunity for discretionary acts. To the extent probation controls placement, that placement would be discretio...

Excerpt: ... Judge Claster's thoughtful and thorough review of the legal and factual issues in the related case. The Court asks counsel to be prepared to address the following issues: 1. What is the current schedule for all Orange County hearings? 2. Is Plaintiff estopped from arguing that the Zimmers case does not extinguish this case given his explicit argument that counsel should be paid $144,375 because his case would be extinguished and these efforts le...

Excerpt: ...tiffs' Complaint - DENIED. (a)The Court finds that the insurer defendant is entitled to enforce the appraisal provisions contained in the contract. However, the scope of the appraisal process is limited to the determination of the amount of loss incurred under the policy, and it does not encompass determination of Plaintiff's other claims at issue in this matter. (See, e.g. Appalachian Insurance Company v. Rivcom Corp. (1982) 130 Cal.App.3d 818.)...

Excerpt: ...notes that Defendant failed to submit a substantive response to the motion but only challenged the sufficiency of Plaintiff's initial meet-and-confer efforts. With regard to Form Interrogatory 7.1, the Court finds that all objections are waived due to the lack of a verified response. However, the substance of the response is sufficient. Therefore, Plaintiff is entitled to obtain Defendant's verification but no additional responsive information is...

Excerpt: ... Second Amended Complaint - SUSTAINED, with leave to amend; d) Defendants Robert Barandica, M.D., and CEP America-California's Motion for Order Striking Portions of Plaintiffs' Second Amended Complaint - DENIED, as MOOT; e) Defendants Thanh Huynh, M.D. and Hospitalists of Modesto Medical Group, Inc.'s Demurrer to the Third and Fourth Causes of Action of Plaintiffs' Second Amended Complaint - SUSTAINED, with leave to amend; f) Defendants Thanh Huy...

Excerpt: ...e Court is relying on the application for late claim for that timeline, which Respondent agrees with. The Court believes the actual deadline to file would have been on or near January 17, 2021 (Cal Gov't Code section 911.2; Executive Orders N-35-20, N-71- 20.) Petitioner located the Del Puerto Health District, spoke to people at the district, spoke to the police, and spoke to the City of Patterson in an effort to determine the best course of acti...

Excerpt: ...he motion is untimely with regard to the request to recover costs, which is governed by the provisions of Cal. Rules of Ct., rule 3.1700 et seq. (See, e.g. Sanabria v. Embrey (2001) 92 Cal.App.4 th 422.) Therefore, the motion is DENIED as to costs on that basis. Further, to the extent the motion seeks recovery of expert fees incurred by Cross-Defendants, the Court finds that the moving parties have failed to demonstrate that the contract provisio...

Excerpt: ...Cause of Action for Negligent Infliction of Emotional Distress are SUSTAINED, without leave to amend. Defendants' Demurrers as to the Second Cause of Action for Violation of the Elder Abuse and Dependent Adult Civil Protection Act, CA Welfare and Institutions Code §§15600, et seq. are SUSTAINED, with leave to amend. Negligent Infliction of Emotional Distress is but a form of negligence. Burgess v. Superior Ct. (1992) 2 Cal.4th 1064, 1071-1072.)...

Excerpt: ...Defendant agreed to dismiss his claims for negligence and intentional tort and filed an “Amendment to Complaint to Add Verified Petition for Writ of Mandate.” On March 2, 2020, Judge Dougherty ordered that Defendant “be allowed to file his petition for Writ of Mandate.” This document, while proffered as an addition to the existing complaint, did not contain any other claim other than the Writ of Mandate. The claims for negligence and inte...

Excerpt: ... response under oath unless the response contains only objections.” (Cal. Civ. Pro. 2030.250 [interrogatories], 2031.250 [requests for production], 2033.240 [requests for admission].) The statutes provide that objections are to be signed by the attorney. The responses at issue that contained only objections were signed by the attorney and served on their due dates. As to Form Interrogatory 17.1, it is not covered by the Notice of Motion. Furthe...

Excerpt: ... for Failure to Provide Meal Periods – STAYED. a) and b) Plaintiff's Third Amended Complaint specifically alleges alter-ego and successor-in-interest theories and alleges that SEG assumed all of the liabilities arising out IOT's employees' employment. The Asset Purchase identified specific contracts which were not be assumed but the Arbitration Agreement is not identified as an excluded contract. Rather, the employment contracts and liabilities...

Excerpt: ...t Gardner Trucking, INC.'s Renewed Motion for Summary Judgment or in the Alternative Summary Adjudication – GRANTED, and unopposed. (a)Defendant, as the moving party, has the initial burden of establishing a prima facie showing of entitlement to judgment against Plaintiffs as a matter of law. The Court finds that the Defendant has met its burden with regard to the each challenged cause of action herein as well as the claim for punitive damages....

Excerpt: ...djudication as to the Second Cause of Action for general negligence based on premises liability is DENIED. Taking all reasonable inferences in favor of the non-moving party, Shooter Farms has failed to provide sufficient foundation as to the industry standard. While Wendel Trinkler, Jr. has been a farmer for over 30 years, conditioning the almond harvest was “new” to him. (Plaintiff's Material Fact #12.) There are triable issues of material f...

Excerpt: ...subject subpoena. Therefore, the Court finds that the records in question shall be produced first to Plaintiff's counsel, who will perform an initial review in order to identify the materials which meet the agreed-upon criteria for production as to time frame and body part limitations. Plaintiff's counsel shall prepare a detailed privilege log with regard to all redacted information; the privilege log shall contain sufficient factual information ...

Excerpt: ...ilizing, or disclosing any of Level-It's proprietary, confidential and/or trade secret information and/or utilizing anyone in Defendant's employment to do the same;  Performing any future contracts obtained through the use of Level-It's proprietary, confidential and/or trade secret information;  Soliciting Level-It's employees through the use of Level-It's confidential, proprietary, and/or trade secret information or through the use of inti...

Excerpt: ...or Express Contractual Indemnity, the Court finds that the pleading fails to allege facts that give rise to express indemnity obligations arising out of this action under the relevant agreement. Therefore, the demurrer is SUSTAINED as to the First Cause of Action; however, the Court will grant leave to amend in this regard. With regard to the Second and Third Causes of Action for Implied Indemnity and Equitable Indemnity, the Court finds that the...

Excerpt: ...the plaintiff may amend his or her complaint only as authorized by the court's order. (People ex rel. Dep't. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, [leave to amend complaint does not constitute leave to amend to add new defendant].);” see also, Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. Since this demurrer addresses the Unruh Act cause of action, not the IIED cause of action, it is not moot. The Flowers v. Prasad (2...

Excerpt: ...s suspension, allowing Mr. Wallace to return to work in the same unit as Plaintiff was appropriate, particularly when coupled with the threatening phone call Plaintiff received the same as Mr. Wallace's return and Mr. Wallace's subsequent allegedly intentional bumping into Plaintiff while Plaintiff was with a patient. (Disputed Fact #16, Plaintiff's Additional Fact #1, 7.) Summary Adjudication as to the Second Cause of Action for Sex Discriminati...

Excerpt: ...llows: “Real property claim means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right of possession of, specific real property … .” The courts who have construed this definition have explained that a lis pendens may not be recorded in a creditor's action to impose a constructive trust or equitable lien on real property solely as a means of enforcing a debt. See e.g. Urez v. Superior Cou...

Excerpt: ...he discovery in this instance. The issue of Civil Code section 128.7 sanctions for the filing of the case has been ruled on. The issue of sanctions for the bringing of the appeal is not before this court. The case is ripe for final judgment, and has been so for some time. There is no issue outstanding for this court for which the RFA's will provide admissible evidence. Therefore, the Motion for Protective Order is GRANTED. The set of admission re...

Excerpt: ...ara Office of Education (1990) 220 Cal.App.3d 702, 711 suggests the Court has the authority to make a finding of timeliness or untimeliness, and there may be cases in which that finding is premature. In this case, the Court has insufficient evidence to make a determination as a matter of law. The Court notes the issues are intertwined, but failure to present evidence of timely filing at this stage is not fatal to that issue, while failure to pres...

Excerpt: ...pursuant to Code of Civil Procedure 1008, which requires new facts and/or new law. Plaintiff argues that an amended complaint provides new facts. Even if that were the standard, Plaintiff has not attached a proposed amended complaint. Therefore, at the time of Plaintiff's Motion for Reconsideration, there are no new facts or law for the Court to reconsider.” ...

Excerpt: ...nt to constitute a cause of action), it was not waived by defendant's failure to demur. (Id. at 340.) The Answer, when read as a whole, and particularly in context with the allegations of the Complaint, contains sufficient facts to put Plaintiff on notice of the basis of Defendant's claims. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; South Shore Land Co. v. Peterson (1964) 226 Cal.App.2d 725, 733-34: “if one of the defenses or counte...

Excerpt: ...onstrated sufficient meet and confer efforts with regard to the requested depositions, as Plaintiffs' evidence reveals that they are amenable to proceeding with further deposition sessions pursuant to stipulation but seek additional clarification as to the scope of such examinations. Therefore, it appears to the Court that the potential exists for the parties to resolve these issues informally if substantive meet-and-confer discussions are conduc...

Excerpt: ...Starn Farms since his cell phone was associated with the business and he represented himself as Darryl Starn for business purposes. (Undisputed Material Fact #10; Plaintiff's Additional Facts ## 11, 12, 13, 14, 16.) When speaking with Plaintiff's private investigator, Troy Starn made a statement the dog was a biter and he testified he would never touch the dog. (Undisputed Material Fact #11; Plaintiff's Additional Fact #15.) Therefore, there are ...

Excerpt: ... 18 th, and 20 th causes of action. The Court finds that the Second Amended Complaint fails to state facts sufficient to support the stated causes of action. (Code Civ. Proc. §430.10(e).) Moreover, Plaintiffs have not demonstrated that they are able to allege additional facts that would be sufficient to overcome demurrer on these claims, and the Court concludes that they are unable to do so. With regard to the 5 th, 8 th, 16 th, 17 th, and 19 th...

Excerpt: ...pursuant to the notice. Therefore, Plaintiffs are entitled to an order compelling the appearance of Defendant's Person(s) Most Knowledgeable at the location chosen by Plaintiffs within the statutory mileage limitations. (Code Civ. Proc. §§2025.250, 2025.450(a).) Counsel shall meet and confer to select a mutually agreeable date to complete the deposition, which should occur no later than June 18, 2021. With regard to specific issues presented by...

Excerpt: ...igeon's person and heroin in a napkin on his seat. Mr. Pigeon's passenger also had a large sum of cash. Mr. Pigeon's home was then subject to the probation search and paraphernalia consistent with drug sales (i.e. scale, baggies, large quantities of cash in smaller bills) was found. Mr. Pigeon's criminal case (CR-19-000041) resulted in a guilty plea to Cal. Health & Safety Code 11378 (possession for sale) and his conviction was entered on Novembe...

Excerpt: ...LED. (Complaint at ¶ 15.) Plaintiff was performing the work at the CVC facility undertaken SolarLED. (Complaint at ¶¶ 14, 16.) Plaintiff was injured while performing the work within the course and scope of his employment with SolarLED. (Defendant's Undisputed Material Facts (“UMF”) # 3 [based on Plaintiff's verified Responses to Special Interrogatories, Set One, No. 3] and undisputed by Plaintiff.) The scope of the work undertaken by Solar...

Excerpt: ...rent outcome. Plaintiff alleges that she was subject to emotional distress to learning of the treatment of her son and being unable to remove him. This does not constitute intentional infliction of emotional distress when she was not present for the adverse events. Plaintiff further alleges three specific events that she says constitute intentional infliction of emotional distress: 1. The arrest by the police. 2. A telephone call in which the cal...

Excerpt: ...addition, Defendants are entitled to recover allowable costs pursuant to Code Civ. Proc. §§1032 and 1033.5. Therefore, Court exercises its discretion in determining the award, as follows: Hours Reasonably Worked – Regarding the lodestar fees calculation, the Court finds on the basis of Counsel's declarations and supporting exhibits, including time records,that the hours claimed were reasonably incurred and substantially contributed to the ult...

Excerpt: ... is aware that Plaintiff has also filed a Motion to remove the action to federal court, no such removal has occurred nor is there any evidence a federal complaint was actually filed. Therefore, at the time of Plaintiff's Motion for Reconsideration, there are no new facts or law for the Court to reconsider. ...

Excerpt: ...ords that the hours claimed were reasonably incurred and substantially contributed to the ultimate successful result. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Board of Trustees of Calif. State University (2005) 132 Cal.App.4th 359, 394.) Therefore, the hours claimed by Plaintiff's counsel are approved as reasonable in this contest. Reasonable Hourly Rates – In its determination, the Court has considered the skill and experien...

Excerpt: ...�that discovery be essentially self-executing.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402, internal quotations and citations omitted.) Generally, then the parties are free to use any of the statutory methods, in any sequence, and since neither the discovery nor the responses are filed with the court, the court does not consider the propriety of the demands or adequacy of a response un...

Excerpt: ... to Enforce Settlement Agreement – STAYED. a) and b) DENIED. Southwest Law Center's Notice of Appeal filed on April 16, 2021 does not relate to APMI/Alamo Surgery Center's Cross-Complaint, and therefore, these Motions are not stayed. (Cal. Civ. Pro. 916.) The Court finds that the Cross- Complaint is not compulsory, and therefore, the Motion to Strike the Cross-Complaint in its entirety on this basis is denied. The Court also finds that the Cros...

Excerpt: ...n which CCP section 128.7 is based applies only when an entire pleading is frivolous, not when one sub-part is baseless. Plaintiff has provided no specific evidence of what additional costs will be incurred if affirmative defenses 1-5, 7-8, 10- 16, 18-21, 23-28, 31-38, and 40 are pursued. There is also no evidence the affirmative defenses lacked factual support at the time the Answer was filed. If this sort of piecemeal motion were permissible, a...

Excerpt: ...ations as alleged in paragraph 22 of the Complaint. (Hudson Decl. Exh. A.) Therefore, defendant argues that Plaintiff and her counsel lack a good faith basis to bring the Complaint. Plaintiff, however, submits her own declaration, stating that during her hiring process she was required to undergo a criminal background check as a condition of employment. She states that Patrick Warden of Defendant's Human Resources Department presented her with a ...

Excerpt: ...e Court finds his claimed lack of custody or control of the subject documents to be disingenuous. Finally, having considered Defendant's objections based on privacy concerns and the provisions of Civ. Code §3295, the Court finds that the subject discovery appears to relate to the central issues in the case, such that the law favors disclosure in instance. (See, e.g. Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86.) Therefore, Defendant shall...

Excerpt: ...ard and Plaintiff is ordered to provide such verification within 14 days. With regard to the request for an order compelling further responses to Demand for Inspection of Documents, Set Two, the Court finds that Defendant's motion is deficient in that no separate statement was submitted as required by Code Civ. Proc. §2031.310(b) and Cal. Rules of Ct., rule 3.1345. Therefore, the motion is DENIED in that regard. Lastly, Defendant has failed to d...

Excerpt: ...robate Code sections 859 and 21380(d) as well as Welfare & Institutions Code section 15657.5(a). Additionally, Petitioner Alexis Arsenio is awarded costs in the amount of $3,461.68. Petitioner filed a memorandum of costs on March 4, 2021 and there has been no motion to tax/strike costs filed. Therefore, the Court awards a total of $53,713.18 in fees and costs to Petitioner Alexis Arsenio in her capacity as successor trustee of the Arsenio Family ...

Excerpt: ... and to the opposition show that while defense counsel originally offered that both parties' discovery dispute be resolved simultaneously, Plaintiff's counsel declined. Thereafter, the extensions of time to file a motion to compel were expressly limited to Plaintiff's deadline to file such a motion(s) against Defendant(s). Both parties affirmatively identified such express limitation in January 2021. The deadline for Defendant to file the instant...

Excerpt: ..., sufficiently pleads facts supporting the elements of the stated claims. b) The motion is GRANTED to the extent that the First Amended Petition purports to seek recovery of fees and costs incurred in the previous dependency and appellate matters. The Court finds no basis for concluding that it has jurisdiction to determine such matters in the instant case. Moreover, such items are not recoverable as a matter of law in connection with dependency ...

Excerpt: ...mination by Dr. Strassberg, and psychological testing by Dr. Berg. The Court finds that the demand sufficiently identifies the potential tests to be administered, and Plaintiff has failed to object to any of the tests identified. Therefore, the Court incorporates the list of potential psychological tests contained in the defense's demand and finds that such tests may be included, subject to Dr. Berg's discretion at the time of the evaluation. The...

Excerpt: ...erial fact. (Code Civ. Proc. §437c(p)(2).) With regard to Issue 1 identified in the instant motion, Plaintiff has identified no material factual disputes and appears not to oppose the Court's finding that Defendant Modesto City Schools bears no direct liability for negligence herein. (Gov. Code §815.) However, this does not foreclose the possibility of the district's liability based on actions of its employees as provided by Gov. Code §§815.2...

Excerpt: ...et One- Employment, Special Interrogatories, Set One, and Request for Production of Documents – Set One; objections have been waived. (Code Civ. Proc. §§2030.290(a), 2031.300(a).) Therefore, Plaintiff is entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. With regard to Request for Admissions, Set One, the Court finds that Plaintiff is entitled to an order deeming the matte...

Excerpt: ...determine the nature of the subpoenaed records from that document. In addition, the Court finds that Plaintiff's objections to the subject discovery were arguably waived by Plaintiff's failure to object to previous subpoenas which resulted in the disclosure of similar information from some of the same providers at issue here. (See, e.g. Jones v. Superior Court (1981) 119 Cal.App.3d 534.) In any case, the Court finds that Defendant has sufficientl...

Excerpt: ...ure has already determined the confidential nature of proceedings in juvenile matters, both before the trial court and on appeal. (See, e.g. Welf. & Inst. Code §827 and Cal. Rules of Ct., rule 8.401 et seq.) Therefore, the Court finds that the adjudged confidentiality of such matters, as determined by the legislature, must be preserved in connection with the submission of such underlying documents in the context of this proceeding. The Court bel...

Excerpt: ...will produce documents and a privilege log in response to Requests 1 through 21; 31 through 36; 43, and 44, as well as verifications to the original responses. As Requests 22, 23, 24, 25, 26, and 46, Plaintiff has made the initial good cause showing that these requests are related to the issue of staffing and corporate ratification and are limited to those staffed in the same unit or wing where the decedent was housed. Defendant has not demonstra...

Excerpt: ...Plaintiff has not explained why his position as supervisor would waive his requirement to complete training. Rather, Plaintiff's training records demonstrate he completed other training as a supervisor, which Plaintiff does not dispute. The training records show Plaintiff actually completed the arbitration policy training using his unique login and personalized password. There is substantial evidence to support the finding that Plaintiff actually...

Excerpt: ...e Court declines to award issue sanctions at this time; however, this determination is made without prejudice to consideration of the propriety of such sanctions in the event of future failures to comply with the Court's orders. Therefore, the Court finds that Plaintiff is entitled to monetary sanctions in connection with the defense's above- described misuse of the discovery process, which necessitated the instant motion. Sanctions are awarded a...

Excerpt: ...ories, numbers 4.1 and 4.2, at issue. Defendant concedes the propriety of a further response. Therefore, Plaintiff's Motion is GRANTED. Defendant's verified responses to Form Interrogatories 4.1 and 4.2 are due within ten (10) days of the Court signing the Order. Plaintiff requests $3,770 in monetary sanctions. Since Defendant has conceded that a further response is warranted, sanctions are appropriate. However, as there are only two form interro...

Excerpt: ...hat Defendant has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Plaintiffs are entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. The Court further finds that Plaintiffs are entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the subject discover...

Excerpt: ...February 23, 2018. Respondent's decedent Linda L. Butler was entitled to rely on the Affidavit. Petitioner's conclusory statements in the First Amended Petition that decedent Butler “knew” Respondent Richardson's affidavit was fraudulent are not supported by any facts. The Court is not required to assume that conclusory statements are true on demurrer. (See Serrano v. Priest (1971) 5 Cal.3d 584, 591 – conclusory allegations against defendan...

Excerpt: ...s that the proposed class representative and/or the proposed amended allegations are legally insufficient is not properly before this court. “[T]he better course of action [is] to allow [Plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.” (Kittredge Sports co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) Furthermore, while it appears there has been some delay in seek...

Excerpt: ...not explicitly set forth in the administrative charge if they are like or reasonably related to the other charges set forth and could reasonably be expected to grow out of the administrative investigation. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4 th 243.) Here, the Court finds that the allegations in the EEOC Complaint, when liberally construed, sufficiently raise the issue of discrimination based on sex, such that a reasonable invest...

Excerpt: ...ating specific facts supporting the claimed insufficiency of the Defendant's responses and agreement to produce documents. With regard to Request Nos. 40-44, Plaintiff failed to make a foundational showing that such discovery is reasonably likely to lead to the discovery of admissible evidence in this case. Moreover, the defense has submitted evidence demonstrating that its objections based on relevance and burden/oppression are well-taken under ...

Excerpt: ...elated to alleged defects, problems, complaints, symptoms, and/or features of the subject vehicles that are not at issue in this action, as defined by Plaintiff's pleadings and responses to discovery to date. Such requests are not reasonably calculated to lead to the discovery of admissible evidence herein. However, the moving papers do not afford sufficient information for the Court to determine which specific requests should be covered by the c...

Excerpt: ...address reasonably known to Plaintiff. This new evidence appears to perhaps go to actual knowledge, which the Court did not, and does not, believe is relevant. Plaintiff further claims that “Despite clear notice of her intent to provide evidence at the hearing, the Court neither permitted Plaintiff's testimony nor her additional documentary evidence to be considered, nor did the Court grant a continuance to allow full hearing on the matter with...

Excerpt: ...oduce admissible evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiffs have met their burden in this regard and have demonstrated the existence of material factual disputes. (See, at a minimum, Plaintiffs' evidence in response to UMFs 45-55.) With regard to evidentiary objections, the Court notes that Plaintiffs' objections to Defendant's moving evidence were not ...

Excerpt: ...in its contentions, and this determination may only be made upon final resolution of the competing contract claims. (Frog Creek v. Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4 th 515, 539-540.) Therefore, “a court may not award fees under Civil Code section 1717 to one party for prevailing on a complaint and another for prevailing on a cross- complaint arising under the same contract.” (Id., at 538.) ...

Excerpt: ... Motion to Strike (Code Civ. Proc. 425.16). (See, e.g. Dickinson v. Cosby (2017) 17 Cal.App.5 th 655; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4 th 1049.) The demurrer to the First Cause of Action is overruled; the Court finds that the allegations, when liberally construed, are sufficient to constitute the stated cause of action. The demurrer to the Third Cause of Action is moot, as that claim has been dismi...

Excerpt: ...hat the subject requests are worded broadly enough to potentially call for the production of privileged materials, Plaintiffs are nevertheless entitled to Code-compliant responses which provide sufficient factual information to allow Plaintiffs to evaluate the merits of the claims of privilege, including provision of a privilege log where necessary. The Court further finds that all responsive documents not subject to a claim of privilege should b...

Excerpt: ...viously awarded $395 an hour to Davis Boat's counsel for its trial court attorney fees (exs. 5 and 9), Davis Boat requests the same $395 per hour for its appellate counsel's work.” Marshall Cole's Declaration in Support of the Motion for Attorney's Fees after the jury trial, filed March 10, 2020, identifies $385 per hour as the rate this Court awarded to lead counsel. Additionally, Exhibit 3 to Mark Schaeffer's Declaration estimates 10 (ten) ad...

Excerpt: ...elief under Code Civ. Proc. §473(b). In addition, the Court finds that Defendants failed to seek relief within a reasonable time and have failed to offer a reasonable excuse for the delay. (Code Civ. Proc. §473(b); Huh v. Wang (2007) 158 Cal.App.4 th 1406; Ludka v.Memory Magnetics, Int'l. (1972) 25 Cal.App.3d 316.) The moving party bears the burden of demonstrating that relief was sought within a reasonable time, whether or not the other party ...

Excerpt: ...nterrogatories, Set One is GRANTED as to Numbers 15.1 and 17.1. The objections are untimely and have been waived. The responses are evasive and warrant a further response that is statutorily compliant. Plaintiff's Motion to Compel Further Responses to Form Interrogatories, Set One is DENIED as to Numbers 2.11, 2.12, 2.13, 4.1, 4.2, 12.1, 12.2, 12.3, 12.7, 13.1, and 14.1. Defendant's January 30, 2021 amended responses withdrew the objections at is...

Excerpt: ...ause the evidence and case law cited in the Reply is new, Defendant must be afforded an ample opportunity to respond. Therefore, this Court continues the hearing on Plaintiff's Motion for Summary Adjudication as to these causes of action only, as well as Defendant's Objections to the Evidence and Plaintiff's Reply Objections to the Evidence to Wednesday, June 9, 2021 at 8:30am in Department 22. Defendant's Response is due 14 days before the conti...

Excerpt: ...acts. The Court has considered the following Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 factors: 1. The amount in question operates as a relatively small percentage of the claimed damages. Walsh & Simmons' argument regarding lost income appears sound, but special and general damages remain substantial. Nonetheless, it is unclear what liability there is or what the chances of success are at trial. The supplemental filings ...

Excerpt: ...ipient witness identified as “Fabiola.” The defense has demonstrated entitlement to discovery on these issues, and the Court finds that Plaintiff's asserted privacy concerns do not outweigh the right to discovery in this instance. The Court finds that the questions regarding counsel's referral of Plaintiff to certain health care providers qualify as prima facie confidential communications pursuant to Evidence Code §952, and Defendants have n...

Excerpt: ... property in the separate statement. This view appears mistaken. An allegation of interference with the property is not the same as an allegation of full conversion. 2. Plaintiff contends that the quiet title action would not affect easements. In fact, quiet title is often used against adverse easement claims. (See: Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1033-1034: quiet title judgment for prescriptive easement establishes...

Excerpt: ...§15610.23 excludes acute conditions caused by alcohol dependency is not supported by the cases cited or even by subsection (b) of §15610.23 referring to health facilities defined in Cal. Health & Safety Code 1250.3 (“chemical dependency recovery hospital,” providing inpatient care for persons dependent on alcohol (and/or drugs)). Since Plaintiff alleges the decedent was grossly impaired and actually under the influence of alcohol at the tim...

Excerpt: ...ials.” The documents to be produced pursuant to the subpoenas are otherwise to be produced with the following modifications: Report cards, student transcripts, scholastic testing records, and teacher comment cards are limited to January 1, 2015 through the present. Office visits, disciplinary records, absence records, incident reports, medical records, and counseling evaluations are limited in scope to the same extent the parties have already a...

Excerpt: ...demonstrates that Cross-Defendant Staffing Solutions Inc.'s failure to respond to the amended cross-complaint was the result of “mistake, inadvertence, surprise or excusable neglect” as set forth in Code of Civil Procedure section 473(b). Furthermore, contrary to opposing counsel's arguments in opposition, the discretionary provisions of Section 473(b) are available under these circumstances. “Discretionary relief may be granted for excusab...

Excerpt: ...s matter. Therefore, the Court presumes that the motion is directed against its order dismissing the action on 6-5- 2020. Plaintiffs have failed to set forth any facts or admissible evidence in support of their request for relief herein. Therefore, they have failed to demonstrate sufficient grounds for the relief requested and the motion is DENIED. (b) The motion is moot in view of the Court's above denial of the concurrent motion to set aside th...

Excerpt: ...ourt does not have discretion to dismiss an action where the events specified by the statute have not occurred. (See, e.g. Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4 th 1422.) Even if the Court has discretion here, the Court finds that the reasons for the delay outweigh any detriment to Defendants. ...

Excerpt: ...ers 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, and 53 are GRANTED. Responses and production, if any, are due served within 20 days of the signed order. Request for Production numbers 17, 18, 29, 30, 31, 32, 50, 51, and 52 are DENIED. These requests seek documents protected from disclosure based on the taxpayer privilege and third-party constitutional rights to privacy. (Cal. Const.,...

Excerpt: ...ion appears to acknowledge that notices were served for PMK depositions on all 3 subjects described in the papers herein. With regard to the depositions described as #s 1 and 2 (PMK depositions with regard to (1) Defendant Gurney's training of Defendant Mendoza, and (2) Defendant Gurney Trucking's safety training, safe driving protocols, safety meetings, and disciplinary protocols regarding unsafe driving), defense counsel's declaration demonstra...

Excerpt: ...ee also Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908 – “Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.”) Therefore, the motion is DENIED as to the First Cause of Action. With regard to the contract and quiet title claims, these appear to rest on the allegation that the parties entered into an oral agreement with regard to Plaintiff...

Excerpt: ... must be pleaded with particularity. This means that the pleading must allege every fact material to the existence of the entity's alleged statutory liability, and such facts must be sufficient to show that the cause(s) of action lie outside the breadth of any statutory immunity. (Soliz v. Williams (1999) 74 Cal.App.4 th 577, 584.) Here, Plaintiffs fail to allege any specific facts that support the City's alleged liability under the identified st...

Excerpt: ...subject materials. However, the scope of the production should be limited in time from the start of the previous academic year (fall 2017) through November 28, 2018. In addition, any such documents should be treated as confidential and dissemination outside the purposes of this litigation is prohibited. Lastly, the Court has concerns about the identification of additional non-party students in the documents to be produced and instructs that the s...

Excerpt: ...inds that Defendant has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2031.300(a).) Therefore, Plaintiffs are entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. The Court further finds that Plaintiffs are entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the subject di...

Excerpt: ...here a valid agreement to arbitrate and, if so, (2) does the agreement cover the dispute or claims at issue? If the answer to both of these questions is yes, then a court must compel arbitration. (See e.g. Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.) In addition, the Court specifically finds that there is not a risk of conflicting or inconsistent rulings as set forth in Code of Civil Procedure section 1281.2(c) and (d). In Plainti...

Excerpt: ...s filed in bad faith or for the purposes of harassment. Bad faith is “only” found if it is demonstrate that the pleading was filed due to “the conscious doing of wrong because of dishonest purpose or moral obliquity…it contemplates a state of mind affirmatively operating with furtive design or ill will.” (United States v. Manchester Farming Partnership (9th Cir. 2003) 315 F.3d 1176, 1183.) The issue of standing appeared to be treated as...

Excerpt: ...egard to other factors, including the strength of the interest, the seriousness of the invasion, and the availability of alternatives and protective measures. (Id., at 558.) Here, while Cross-Defendant's employees have a recognized privacy interest in their personal information, contact information has not been found to be particularly sensitive. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4 th 360, 372.) In addition, the pro...

Excerpt: ...t of the ballpark” as to be inconsistent with the equitable objectives of §877.6. (Ibid.) Therefore, pursuant to Code Civ. Proc.§ 877.6, a dismissal with prejudice is entered in favor of Hisun Motors Corp. USA as to any Complaints or Cross-Complaints presently on file, or deemed filed, against it. All existing or future claims by any party, joint tortfeasor, or co-obligor against Hisun Motors Corp. USA for implied indemnity, equitable indemni...