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

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

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

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

Excerpt: ... requires individual class members to submit a claim form in order to obtain settlement payments, but the moving papers contain no explanation of any purpose served by this requirement other than to potentially reduce the actual amount paid by Defendant in settlement of the subject claims. Moreover, the Court notes that the amount of attorney's fees to be recovered by Class Counsel appear to be calculated based on the stated maximum settlement pa...

Excerpt: ...n unjustified invasion of the right to privacy and the physician-patient privilege in this context. (Code Civ. Proc. §1987.1; 2017.020(a).) The Court declines to award sanctions and notes that the moving parties failed to submit a declaration regarding meet-and-confer efforts. (Code Civ. Proc. §§2017.020(a); 2016.040.) ...

Excerpt: ...on which allegedly exacerbated Plaintiff's pain and suffering due to her inability to take certain medications prescribed for the injuries at issue herein. Therefore, the subject subpoenas shall be modified to seek records pertaining to the above-described conditions/injuries for the time period from 11-8-2008 to the present. (See, e.g. Britt v. Superior Court (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844.) The Court further finds that Plai...

Excerpt: ...e scope of employment is ordinarily a question of fact, unless the undisputed facts do not support such an inference. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213.) The fact that Defendant Miller was admittedly off-duty at the time of the subject incident does not conclusively foreclose liability on the part of Defendant City based on the employment relationship. (Inouye v. County of Los Angeles (1994) 30 Cal.App.4 th 278.) The Court...

Excerpt: ...heir authority to speak, to whom they spoke, what was said and when. (See, e.g. Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157.) Here, the Complaint fails to allege facts with the degree if specificity required in this context. In addition, the Court finds that the Demurrer represents an inappropriate procedure by which to challenge the claim for punitive damages; Defendant's arguments in that regard are evaluated in conn...

Excerpt: ...irectly related to the merits of the causes of action alleged in the Third Amended Complaint, such that the provisions of Code Civ. Proc. §597 do not apply in this context. In addition, the Court finds that the overall “gist” of the action is legal in nature; to the extent that the 8 th Cause of Action seeks an equitable remedy, the allegations therein are so intertwined with Plaintiff's legal claims as to make a separate trial impractical i...

Excerpt: ...s that Defendant's conduct in failing to comply with the Court's order compelling her responses to outstanding discovery and imposing monetary sanctions against her constitutes misuse of the discovery process. (Code Civ. Proc. §2023.010(d), (g).) The Court further finds that the prior sanctions imposed by the Court in this action have not been effective in compelling Defendant to comply with her obligations under the Discovery Act. Therefore, th...

Excerpt: ...he moving defendant. (Code Civ. Proc. §430.10(e).) Specifically, the factual allegations appear to sound in professional negligence as opposed to conduct undertaken with the intent to cause Plaintiff severe emotional distress. Additionally, the pleading does not contain specific factual allegations with regard to the distress suffered. Plaintiff is granted leave to submit an amended pleading. b) The Court finds that the allegations of the First ...

Excerpt: ...ts' Demurrer to the Second Amended Complaint, based on the pleadings, accompanying exhibits, and the briefs of both parties, the Court finds as follows: As to the Second Cause of Action for Fraud as to Cross-Defendant Nora Herrera, the allegations of the Second Amended Cross-Complaint does not plead facts with sufficient particularity as to the specific conduct by the named cross-defendant. Particularity means pleading facts which “show how, wh...

Excerpt: ...tting the Truth of Unanswered Requests for Admission, Compelling Verified Further Responses to Written Discovery, and Request for Sanctions – a) GRANTED, in part; DENIED, in part With regard to Requests for Admissions, Set One, the Court finds that Plaintiffs have entirely failed to respond to the information requested in #1-4, despite acknowledging their “inadvertent” omission and promising to rectify the same in May 2019. Therefore, the C...

Excerpt: ...plaint on its face states facts sufficient to constitute a cause of action for general negligence in subrogation and that the Defendant's Answer on its face fails to state sufficient facts to constitute either any denial of Plaintiff's allegations or a meritorious affirmative defense. (Code Civ. Proc. § 438(c)(1)(A); Bezirdjian v. O'Reilly (2010) 183 Cal.App.4 th 316, 321 [matters subject to mandatory judicial notice deemed part of pleading and ...

Excerpt: ...is Plaintiff's employer) and Defendant HSI, who contends it is not. Defendant HSI seeks only to sequence the discovery in this matter to achieve this goal, not to impose a complete, permanent ban on any particular topic of discovery. Defendant HSI has demonstrated good cause for such an order. Notably, precluding production of an HSI “class list” at this time will further the interests of justice in that it will prevent an entirely unwarrante...

Excerpt: ...is Plaintiff's employer) and Defendant HSI, who contends it is not. Defendant HSI seeks only to sequence the discovery in this matter to achieve this goal, not to impose a complete, permanent ban on any particular topic of discovery. Defendant HSI has demonstrated good cause for such an order. Notably, precluding production of an HSI “class list” at this time will further the interests of justice in that it will prevent an entirely unwarrante...

Excerpt: ..., Richards, Wilson & Co. v. Insurance Communicators Marketing Corp. (1993) 12 Cal.App.4 th 1249, 1263.) Had Plaintiff's dismissal of three of the four causes of action she originally alleged, including the cause of action on which the Court found a triable issue of material fact on the earlier MSJ/MSA, occurred before the issuing of a ruling on the earlier MSJ/MSA, the Court likely would have reached the merits of Defendant's arguments instead of...

Excerpt: ...regard to Requests for Admissions, Set One, the Court finds that Plaintiffs' responses to #3 and 24 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to Form Interrogatories, Set One, the Court finds that Plaintiffs' responses to #8.7, 8.8, 9.1 and 9.2 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to #12.1-12.6, 13.1 and 13.2, the C...

Excerpt: ...tice of termination of the agreement. Moreover, even if the Court were to find Plaintiff's evidence sufficient on the above issues, Defendant has submitted controverting evidence and additional facts which demonstrate the existence of disputed material issues, including but not limited to the nature of the consideration for the parties' agreement (see Plaintiff's Fact 14 and Defendant's Additional Facts 20, 21, 25, and 26); the question of whethe...

Excerpt: ...regard to Requests for Admissions, Set One, the Court finds that Plaintiffs' responses to #3 and 24 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to Form Interrogatories, Set One, the Court finds that Plaintiffs' responses to #8.7, 8.8, 9.1 and 9.2 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to #12.1-12.6, 13.1 and 13.2, the C...

Excerpt: ...tice of termination of the agreement. Moreover, even if the Court were to find Plaintiff's evidence sufficient on the above issues, Defendant has submitted controverting evidence and additional facts which demonstrate the existence of disputed material issues, including but not limited to the nature of the consideration for the parties' agreement (see Plaintiff's Fact 14 and Defendant's Additional Facts 20, 21, 25, and 26); the question of whethe...

Excerpt: ...regard to Requests for Admissions, Set One, the Court finds that Plaintiffs' responses to #3 and 24 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to Form Interrogatories, Set One, the Court finds that Plaintiffs' responses to #8.7, 8.8, 9.1 and 9.2 are evasive and incomplete. Therefore, Defendants are entitled to verified further responses. With regard to #12.1-12.6, 13.1 and 13.2, the C...

Excerpt: ...tice of termination of the agreement. Moreover, even if the Court were to find Plaintiff's evidence sufficient on the above issues, Defendant has submitted controverting evidence and additional facts which demonstrate the existence of disputed material issues, including but not limited to the nature of the consideration for the parties' agreement (see Plaintiff's Fact 14 and Defendant's Additional Facts 20, 21, 25, and 26); the question of whethe...

Excerpt: ... including the declaration of Will Harris and the exhibits thereto, the Court finds that no material disputes of fact exist with regard to Plaintiff's entitlement to judgment on the sole cause of action for breach of contract herein. Specifically, the Court finds that there is no evidence of a valid amendment or extension of the fixed lease term as provided in the governing lease agreement. Therefore, Defendant is liable, as the guarantor on the ...

Excerpt: ... including the declaration of Will Harris and the exhibits thereto, the Court finds that no material disputes of fact exist with regard to Plaintiff's entitlement to judgment on the sole cause of action for breach of contract herein. Specifically, the Court finds that there is no evidence of a valid amendment or extension of the fixed lease term as provided in the governing lease agreement. Therefore, Defendant is liable, as the guarantor on the ...

Excerpt: ...laintiff has established the probable validity of the claim and is entitled to the relief requested. Therefore, the Court is inclined to order that default judgment be entered and the writ of possession issued as requested in the moving papers. The above information is provided as a general description of the Court's view of the matter based on the papers submitted. However, the law requires a hearing on the application before the writ can be iss...

Excerpt: ...have demonstrated material disputes of fact concerning, at a minimum, the issues set forth in Defendant's Separate Statement of Undisputed Material Facts 13-16, 19, 29-30, 36-40 and Plaintiffs' Additional Material Facts 16(a)-(y) and 19(a)-(t). The parties' objections to the expert declarations of Richard Haygood and Dale Dunlap are OVERRULED. ...

Excerpt: ...ary injunction at this time. Therefore, the preliminary injunction shall issue, enjoining the Defendant Gina Bosio from the actions enumerated in the notice of the instant motion. The injunction shall remain in effect until final resolution of this action. Further, the issuance of the preliminary injunction is conditioned upon the Plaintiff's filing of an undertaking in the amount of $2,500 and filing proof thereof, in order to protect Defendant ...

Excerpt: ... were for matters necessary relevant and material to the issues involved in the 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 acts within its discretion in determining whether costs are excessive and should be reduced. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4 th 807, 816-817.) Therefore, after considering the arguments and ev...

Excerpt: ...59(h); se e.g. Maldonado v. Superior Court (2002) 94 Cal.App.4 th 1390, 1398.) As no subpoena was issued, the Court is without the ability to compel his attendance in this instance. Moreover, the court notes that the parties are continuing to meet and confer with regard to Mr. Hampton's deposition and believes it is likely that the issues herein will be resolved through additional good faith efforts on the part of counsel. Lastly, the Court notes...

Excerpt: ...ore, future failures to oppose dispositive motions could result in Plaintiff losing the right to amend her pleading to attempt to allege additional facts to support her stated causes of action. ...

Excerpt: ...cause of action or issue that is the subject of the motion in conjunction with the supporting material facts claimed to be without dispute with respect to each such cause of action or issue. (Cal. Rules of Ct., rule 3.1350(d)(1).) As such, the Separate Statement does not conform to the format specified by Cal. Rules of Ct., rule 3.1350(h). Such deficiencies are particularly troubling in the context of the moving defendant's alternative request fo...

Excerpt: ...r, the Court finds that Defendant/Cross-Complainant is not entitled to recover attorney's fees incurred in connection with the conversion cause of action in the Complaint or the defamation cause of action in the Cross-Complaint (on which she did not prevail at trial). Therefore, the court is inclined to reduce the lodestar amount of attorney's fees claimed by Defendant/Cross-Complainant herein by one-third in order to more accurately reflect the ...

Excerpt: ...ction of privileged materials, Plaintiff is nevertheless entitled to Code- compliant responses which provides sufficient factual information to allow Plaintiff to evaluate the merits of any 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 be produced. Defendant shall provide further verified responses to the subject within ...

Excerpt: ...omplaint pleads facts which, when liberally construed, support Cross-Complainant's claim of delayed discovery. Therefore, the Court cannot conclude that the claims therein are time-barred as a matter of law at this stage. With regard to the First Cause of Action for Fraud, the Court finds that the Cross-Complaint does not allege facts with the required degree of specificity and is uncertain as to the conduct allegedly committed by these moving Cr...

Excerpt: ...o system. Therefore, the matter is again continued and the parties are instructed to continue their efforts to resolve such issues. The parties shall submit a Joint Status Statement detailing their efforts no later than 5 court days before the continued hearing date. Such statement shall also identify any issues remaining in dispute and shall give a brief statement of the parties' positions on the same. CV-18-002271 – LEWIS, DERRECK VS GAILLOT,...

Excerpt: ...ly, the verification provided is insufficient and of no legal effect under the circumstances described in the moving papers. Therefore, Defendant is entitled to an order compelling Plaintiff to provide further verified responses, without objections, and to produce responsive documents within 14 days. (Code Civ. Proc. §§2031.310(a), 2031.280.) Further, the Court finds that Defendant is entitled to an award of monetary sanctions. (Code Civ. Proc....

Excerpt: ...pecifically, Defendant has failed to submit admissible evidence demonstrating facts supporting the claims of oppression, undue burden, and/or expense. Based on the information submitted, the Court is not convinced that Defendant engaged in a meaningful attempt to meet and confer prior to filing the instant motion. The parties are encouraged to undertake that process in good faith with regard to further discovery disputes. The Court declines to aw...

Excerpt: ... with her obligations under the Discovery Act, and that such failure has prejudiced the defense's ability to evaluate Plaintiff's claims and to prepare for trial. Therefore, the Court finds that terminating sanctions are warranted. (Code Civ. Proc. §2023.030(d).) Plaintiff Rosalinda Palomo's Complaint shall be dismissed as against Defendant Karla Ann Ciarolla herein. No further monetary sanctions are awarded. ...

Excerpt: ... duplication and unnecessary costs and to make discovery settlement negotiations more efficient and effective. The motion to consolidate is GRANTED and the controlling case number will be #2016283. All further papers/pleadings shall be filed under the controlling case number. Parenthetically, the Court requests counsel appear, at least, via CourtCall to address a scheduling issue which is likely to impact the looming trial. ...

Excerpt: ...ormation is crucial to the defense's preparation of the case; or that the deposition would even prove useful, considering the application of the attorney-client and attorney work product privileges. (Carehouse Convalescent Hospital v. Superior Court (Sims) (2007) 143 Cal.App.4 th 1558; Spectra-Physics v. Superior Court (Teledyne) (1988) 198 Cal.App.3d 1487.) b) Defendant's Motion for Order Compelling Further Responses to Discovery – GRANTED, in...

Excerpt: ...eaningful interactions as to issues, such as Defendant's claims of privilege as to certain categories of documents, which might narrow the scope of the requested materials. The Court believes that with additional efforts expended in good faith, the potential exists for the parties to narrow or resolve the issues raised herein. Therefore, the matter is continued and counsel are instructed to meet and confer in person or by telephone with regard to...

Excerpt: ...does not permit him to impair or destroy the client's cause of action or defense. (Seacall Develop. Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4 th 201; Orange Empire Nat. Bank, (1968) 259 Cal.App.2d 347.) Defendant shall file her answer within 20 days. ...

Excerpt: ...fically as it concerned the discovery of electronically stored information in Defendants' HourTrack and current, cloud-based UltiPro systems. Therefore, the instant motion is DENIED as it concerns Defendants' conduct in that regard. As to the recently discovered electronically stored information contained within Defendant's former UltiPro system, the Court finds that with additional efforts expended in good faith, the potential exists for the par...

Excerpt: ...claim against Defendant Rodriguez. The Court further finds that Plaintiff's evidence indicates that Defendant has no equity in the property. Therefore, the Court is inclined to order that the undertaking requirement is waived as to Plaintiff and to require Defendant to file an undertaking in the amount of $32,420.31 as a redelivery bond. (Code Civ. Proc. §§515.010(b), 515.020.) Subject to those terms, the Court is inclined to order that the wri...

Excerpt: ...thout objection, to Defendant's Form Interrogatories – Set Two, Supplemental Interrogatories – Set One, and Supplemental Request for Production of Documents – Set One within 10 days of the instant hearing date. In addition, Plaintiff is again ordered to comply with the Court's previous order awarding monetary sanctions to Defendant on 2-6-19. ...

Excerpt: ...s that the allegations supporting the First and Fourth Causes of Action, when liberally construed, sufficiently state the subject claims. As to the Second Cause of Action, the Court finds that the demurrer is barred by the provisions of Code Civ. Proc. §430.41(b) based on Defendant's failure to challenge the sufficiency of the pleading (on grounds other than the statute of limitations) in her previous demurrer. Therefore, the demurrer to the abo...

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

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