Excerpt: ...otion, particularly in view of the apparent existence of controverting evidence in the depositions of Mr. Hensel and Mr. Pilgrim, and Defendant's failure to identify and address the same. Had Defendant properly identified such items of evidence, Defendant would not have been able to carry its burden herein. In any case, assuming arguendo that Defendant has met its initial burden, the Court finds that Plaintiffs have satisfied their obligation to ...

Excerpt: ...fendant has established that there are no issues of material fact and no evidence to support Plaintiffs' causes of action herein. In the absence of any opposition, Plaintiffs have failed to offer evidence which raises a triable issue of material fact as to any theory of liability as against the moving defendant. Therefore, the motion for summary judgment is granted and judgment shall be entered in favor of Defendant Doctors Medical Center of Mode...

Excerpt: ...ature of the argument between the parties herein, i.e. the Plaintiffs' entitlement to obtain information and documentary evidence which may assist them to identify additional class members herein and the notice requirements, if any, which apply to protect such third parties' privacy interests at this pre-certification stage of the litigation. With regard to this issue, the Court finds that the holding in Belaire-West Landscape, Inc. v. Superior C...

Excerpt: ...ify Respondent's appraiser. With regard to Petitioner's request that the Court appoint a neutral umpire pursuant to Ins. Code §2071, the Court finds that the parties' disagreement over Mr. Andrews' qualifications to serve as Respondent's party appraiser appears to have impeded the appraisers' abilities to meaningfully confer as to possible agreement on this issue. In addition, the petition does not conform to the requirements of CCP §1286.1, in...

Excerpt: ...laintiff to provide answers, without objection, to the subject discovery within 30 days. With regard to Requests for Admissions, Set One, the Court finds that Plaintiff has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2033.280(a). Accordingly, the Court has no discretion but to grant Petitioner's request. (Code Civ. Proc. §2033.280(c); St. Mary's v. Superior Court (Schellenberg) (2...

Excerpt: ...t it was the failure to provide billings that constituted the malpractice complained of. In fact, Cross-Complainants argue that the failure to provide billings covered up malpractice. They have properly alleged that they could not have discovered malpractice until they received the bill sometime after this matter was filed. As to the Ninth Cause of Action, for Fraud – Concealment, the Court SUSTAINS the Demurrer, with leave to amend. Cross-Comp...

Excerpt: ...just. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.) Hours Reasonably Worked – Regarding the lodestar fees calculation, the Court finds, on the basis of Mr. Watts' declaration, that the hours claimed through September 2019 were reasonably incurred and substantially contributed to the ultimate successful result on the contract claims. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Board of Trustees of Calif. State University (2005) 1...

Excerpt: ..., California courts have recognized that "where an amendment does not add but simply corrects a misnomer by which an 'old' defendant was sued, case law recognizes an exception to the general rule of “no relation back." (Hawkins v. Pacific Coast Bldg. Products Inc. (2004) 124 Cal.App.4th 1497.) Plaintiffs seek to correct a misnomer by which Defendant BBVA USA aka Compass Bank was named in the original complaint. Therefore, a First Amended Compla...

Excerpt: ...position that some of the interrogatory responses were not accurate. Plaintiffs were dilatory in bringing the motion by waiting until ten days before the discovery cut off to depose defendant's PMQ, and then delaying to file its motion, such that it would have been heard less than 30 days before trial. However, the new trial date eliminates any concern of delay of that trial due to the granting of this motion. Moreover, defendant is not blameless...

Excerpt: ...emonstrating a material factual dispute. Plaintiff has failed to meet her burden in this regard, as there is no evidence of a contract supporting the subject cause of action as a matter of law. Therefore, the Motion is GRANTED as to the Second Cause of Action. As to the Third Cause of Action for Negligent Infliction of Emotional Distress, the Court finds that Defendants, as the moving parties, have met their initial burden of demonstrating prima ...

Excerpt: ...r and employee' or ‘independent contractor' for statutory purposes, including, but not limited to, withholding taxes on wages and for purposes of unemployment compensation, shall be governed by Section 650 and Sections 13000 to 13054, inclusive, of the Unemployment Insurance Code.” Section 650 of the Unemployment Insurance Code sets forth that no employment relationship exists if three criteria are met, all of which are met here. The Court re...

Excerpt: ...ucing evidence demonstrating the existence of material factual disputes, specifically with regard to whether harassing conduct directed against him by Defendant based on his sex continued into the early months of 2014, which would render the December 2014 administrative complaint and, in turn, the Complaint herein, timely. (See, at a minimum, Plaintiff's Additional Material Facts 7, 8, 9, 12, 14, 15 and supporting evidence.) Therefore, the motion...

Excerpt: ...) With regard to the issue of valuation as it pertains to the amount of the undertaking required by Code Civ. Proc. §515.010 et seq., the Court is inclined to find that Defendant possesses no interest in the property; therefore, no undertaking is required of Plaintiff herein. (Code Civ. Proc. §515.010(b).) However, Defendants shall be required to file an undertaking in the amount of $188,668.74 as a redelivery bond. (Code Civ. Proc. §515.020.)...

Excerpt: ...sistent 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 fact, it appears that the motion fails to identify the maximum penalties for the various Labor Code violations alleged in the First Amended Complaint, each of which may arguably g...

Excerpt: ...e that claim due to its failure to seek injunctive or other extraordinary relief as required by Gov't. Code §3309.5(d)(1). Moreover, it is Plaintiff's burden to establish how the pleading may be properly amended, and the Court finds that Plaintiff has failed to meet that burden in this context. Specifically, Plaintiff fails to provide any authority establishing that he is entitled to assert a claim for extraordinary relief, i.e. by way of petiti...

Excerpt: ...ting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settleme...

Excerpt: ...sponse did not comply with Code Civ. Proc. §2031.240 et seq. Moreover, the items appear to be reasonably related to the subject matter of the suit herein and the proper subject of discovery. Finally, Plaintiff has the burden of demonstrating why the existing protective order is inadequate to address its expressed privacy and confidentiality concerns and has failed to make any showing in that regard. Therefore, Plaintiff shall provide a further v...

Excerpt: ...as was the cause of action) was “incidental” to the primary claims set forth in their petition. See Regalado v. Regalado (1961) 198 Cal.App.2d 549. The primary purpose of Petitioners' claims was not partition – thus there is no basis for apportionment of their attorney's fees under Code of Civil Procedure Section 874.010 et seq. Additionally, Petitioners seek to impose costs of proof under Code of Civil Procedure section 2033.420 on the bas...

Excerpt: ...ller for the relevant time period. Based on the supplemental declaration of counsel submitted in connection with this matter, the Court now makes the following ruling with regard to the fees and costs sought herein: As previously noted, Defendant does not dispute the moving party's entitlement to post-stipulation fees under the above-referenced statutes, but contests the reasonableness of the hours claimed. The successful party is normally entitl...

Excerpt: ...ails to allege that Defendants knew or should have known that the driver to whom the vehicle was entrusted was incompetent to drive. (Jen-Weld, Inc. v. Superior Court (2005) 131 Cal.App.4 th 853, 864.) Moreover, the Complaint fails to plead any acts or omissions which Plaintiff claims to have constituted Defendants' alleged negligence. (Berkley v. Dowds (2007) 152 Cal.App.4 th 518, 527; Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101.) ...

Excerpt: ...cted on the purported “claim form” published by the District. Moreover, absent evidence of delivery or mailing to the appropriate recipient, it is Plaintiff's burden to establish actual receipt and no such evidence has been presented herein. Assuming arguendo that receipt by the appropriate recipient can be established, the Court nevertheless finds that the subject correspondence in June 2018 failed to constitute a claim because it omitted th...

Excerpt: ...s. Nor is such a claim preempted by ERISA; the new cause of action is not entirely dependent upon Explanations of Benefits, but refers to other behaviors as well. Under these circumstances, Morris B. Silver M.D. Inc. v. International Longshore & Warehouse (2016) 2 Cal.App.5th 793, does not require a finding of federal preemption. b) Just as it was appropriate to consolidate the first two cases brought by Plaintiff against Defendant based upon the...

Excerpt: ...ine whether Defendant is the prevailing party under the practical approach set forth in Castro v. Superior Court (2004) 116 Cal.App.4 th 1010, 1022-1023. Therefore, the Court has considered the moving and opposing arguments and evidence and finds that the moving party would have prevailed on the instant motion on the basis that the Complaint does not set forth a real property claim sufficient to support the recording of a lis pendens under Code C...

Excerpt: ...nth, Ninth and Twelfth causes of action allege claims that are not available against a public entity as a matter of law. (Gov't. Code §815(a); Miklosky v. Regents of the Univ. of Calif. (2008) 44 Cal.4 th 876, 900-901; Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24.) The Sixth and Eighth causes of action appear to assert claims that are not properly pleaded under FEHA and are, in any case, duplicative of the First and Second Causes of action and, ...

Excerpt: ...ain insufficient. (As just one example, Plaintiff's further response to Request for Production No. 3 is: “I do not have the documents.” This is not a code-complaint response.) Therefore, based on all of the pleadings and papers in the file, the Court GRANTS the Defendant's motion to compel further responses to Form Interrogatories, General, Set One Nos. 2.7, 4.1, 7.1 – 7.3, 8.3, 8.8 and 17.1, as well as Requests for Production of Documents,...