Excerpt: ...red in proving this matter. However, the fees appear reasonable in light of the services rendered before and at the time of trial, where a relatively simple dispute became costly and complex. Therefore, Plaintiff is awarded, and Defendant is ordered to pay, $188,286 in attorney's fees. ...

Excerpt: ...the case law interpreting the reference to “additional damage” in that section. (See, e.g. McNeill v. Bredberg (1961) 192 Cal.App.2d 458.) Plaintiffs are granted leave to amend in order to attempt to allege facts that might bring these items of damage within the scope of recoverability under the law. Plaintiff shall file their First Amended Complaint within 20 days. ...

Excerpt: ...endent abuse, not as stand-alone causes of action. None of the case law cited by Defendant holds that the types of allegations complained of should be stricken from a complaint like this one. Defendant further argues that Plaintiff has admitted that Defendant's staff was appropriately trained, so that allegations charging otherwise should be stricken. In fact, however, a review of the Complaint indicates that Plaintiff alleges that Defendant knew...

Excerpt: ... collision, whether the physical characteristics of the intersection exposed pedestrians to increased danger from third party negligence, whether the driver would have responded to any additional signage or warning devices such as flashing beacons, rumble strips, etc., and whether a driver striking a pedestrian at the intersection, be it due to sun glare, shadows, lack of warning signs and devices, or any combination of these and other factors di...

Excerpt: ...ourt made it plain in its February 27, 2020 Order that the prior iteration of this motion was denied without prejudice, and Defendant was granted a final opportunity to present the motion properly, which he has now done. Defendant has asserted that he was surprised by the default judgment against him in light of his discussions with Plaintiff's attorney, and the Court finds this contention sufficiently credible to warrant granting the motion. 2. ...

Excerpt: ...27, 435.) Here, Petitioners have demonstrated that the fact that they were 25 days late in filing their claim was the result of excusable neglect or mistake. Specifically, Petitioners' counsel stated in a Declaration that he originally met with Petitioners in late August, 2019. The Petitioners at that time said that they needed to think about how to proceed. Thereafter, counsel failed to ensure that Petitioners had retained other counsel or decid...

Excerpt: ...on to Compel Arbitration and Stay Action is GRANTED. Under the Federal Arbitration Act, “a heavy presumption weighs the scales in favor of arbitrability.” (O'Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 490-91.) The FAA preempts and invalidates all state laws and judicial decisions that disfavor arbitration, that single out arbitration provisions for higher scrutiny, or that are inconsistent with the purpose of the FAA and the U.S. Suprem...

Excerpt: ...f the Court. (Mansour v. Superior Court (1995) 38 Cal.App.4 th 1750, 1756.) While it would have been better practice for the City to have made it explicit that it was appearing specially, the Court cannot infer from the City's actions that it intended a general appearance. The City's assertion that Plaintiffs proffered their claim late, and that the City rejected their application for leave to present a late claim, is not well taken. First, Secti...

Excerpt: ...ctors that this Court take jurisdiction of the winding up of corporate affairs. Therefore, pursuant to section 1904 of the Corporations Code, this Court hereby takes jurisdiction over the voluntary winding up of the corporation's affairs. Pursuant to Code of Civil Procedure section 565, this Court will appoint a receiver to manage and complete the winding up of the corporation's affairs. By no later than March 3, 2020, the parties shall submit to...

Excerpt: ...y imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Landau v Superior Court (1998) 81 Cal.App.4 th 191, 217.) Furthermore, “In reviewing the exercise of this discretion we bear in mind the principle ‘[c]ourts should let administrative boards and officers work out their problems with as little judicial interferen...

Excerpt: ...ent, as detailed in the Demurrer. Defendant also properly points out that the Complaint is uncertain and ambiguous, in that Plaintiffs' Complaint purports to allege causes of action under the FEHA, but the Right to Sue Notice they attached to their Complaint came from the Equal Employment Opportunity Commission. This suggests that Plaintiffs failed to exhaust their administrative remedies. The Self-Help Center offers free help to people who are r...

Excerpt: ...s not strictly limited to claims brought under the California Consumers Legal Remedies Act, as Plaintiff argues, it is not intended to apply to the type of claim alleged here. Therefore, the demurrer to this portion of Plaintiffs' First Amended Complaint is sustained without leave to amend. Accordingly, Defendant's Motion to Strike Portion of Plaintiffs' First Amended Complaint in GRANTED IN PART WITHOUT LEAVE TO AMEND AND DENIED IN PART. Those p...

Excerpt: ...s Request for Judicial Notice. Defendants' Demurrers No. 1 and No. 2 are OVERRULED. Defendants' Demurrer No. 3 is SUSTAINED, with leave to amend, for failure to state facts sufficient to constitute a cause of action. However, it appears Plaintiff can amend this cause of action to cite to the correct Labor Code Section – which does provide her with a private right of action. (Labor Code Section 233.) Defendants' Demurrer No. 4 is SUSTAINED, with...

Excerpt: ...at are not the proper subject of court ordered fees. Additionally, the Court finds that there are some excessive amounts billed. Before setting a long cause hearing on this subject, the Court orders Plaintiff's counsel to do the following: 1. Review and consider the amounts billed; 2. Prepare a new bill for the Court's consideration and this bill shall be divided so that the tasks of each biller are listed separately, so the court may consider th...

Excerpt: ...anting 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 settle...

Excerpt: ...s admissible. (Code Civ. Proc. §2015.5; Cal. Rules of Ct., rule 3.1306.) Moreover, the evidence he purports to offer in support of the motion suffers from the same defects and constitutes inadmissible hearsay. In addition, there is no indication that Plaintiff attempted to meet and confer prior to filing the motion, as is required by Code Civ. Proc. §2025.410. Plaintiff is reminded that a pro per litigant is held to the same rules of procedure ...

Excerpt: ...he licensing requirements, therefore allowing his action to proceed. (Bus. & Prof. Code §7031(e).) Specifically, the Court finds that, at a minimum, Plaintiff has demonstrated material issues of fact with regard to whether his conduct with regard to his license in 2018 was reasonable, given the totality of the alleged circumstances surrounding the interaction between the parties. (See, e.g., Plaintiff's Additional Facts 57-62, 71-75.) The partie...

Excerpt: ...s order granting 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 propo...

Excerpt: ...Schmidt possesses the “special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert” with regard to the issues presented herein. (Evid. Code, § 720(a).) As noted by the Court previously, “Whether [Dr. Schmidt's] knowledge in these areas would be sufficient to convince a trier of fact is irrelevant at this stage of the proceedings.” (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970.) Therefo...

Excerpt: ... therein. The Court has reviewed the entire Arbitration Agreement and concludes that it is enforceable. With regard to waiver, the Court notes there is no evidence presented by the Plaintiff that the Defendants "stretched out the litigation process, gained information about [the] plaintiff's case they could not have learned in an arbitration, or waited until the eve of trial to move to compel arbitration." See e.g. Khalatian v. Prime Time Shuttle...

Excerpt: ...e causes of action against Defendant. Plaintiff is reminded that it is her burden to demonstrate a “reasonable probability” that she can cure the defects in her Complaint via amendment. See Schnall v. Hertz Corp, (2000) 78 Cal.App.4th 1144, 1151. “Leave to amend should not be granted “where, in all probability, amendment would be futile.”” See Vaillette v. Fireman's Fund Ins. Co., (1993) 18 Cal.App.4th 680, 685. “It is the plaintiff...

Excerpt: ...uestions of law and fact predominate over questions affecting individual class members; 5) the class representative has claims typical of the class and subclass members; and 6) the class representative and class counsel will fairly and adequately represent the class and subclasses. It appears adjudication of this matter as a class action is superior to other methods of adjudication and the action is manageable as a class action. Plaintiff Zachary...

Excerpt: ...ting there is a likelihood she will prevail on her request for a civil harassment restraining order. Petitioner presents evidence which, if credited, demonstrates that she was the victim of a “knowing and willful course of conduct” that “seriously alarm[ed], annoy[ed], or harasse[d]” her and which “serve[d] no legitimate purpose.” (Code of Civil Procedure § 526.7, subd. (b).) ...

Excerpt: ...rces. As the Court found when it denied a similar motion by Defendant Leitner, “Proper voir dire will be sufficient to address issues related to the jury's ability to competently perform its duties. . . . Where liability is disputed, there is much greater reason to bifurcate the phases of the trial. A jury in this case would be presented with evidence by Plaintiffs relating to the dynamics of the collision, their injuries and other elements of ...

Excerpt: ...ness and Professions Code section 6148, subdivision (b). (Code Civ. Proc., § 403.30, subd. (a)). Moreover, defendant has provided no authority showing that compliance with Business and Professions Code section 6148 is a defense around which plaintiff must plead, and the court rejects this contention. ...

Excerpt: ...k of timely service may ask the court to equitably estop the defendant from asserting the three-year service window. (Code Civ. Proc, § 583.140; see also Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397 (Sanchez).) However, a plaintiff arguing estoppel has to show that some “act of [defendant's] prevented timely service.” (Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 486 (Lesko).) Here, there is no such showing. Although ther...

Excerpt: ...e court also takes judicial notice of plaintiff's answer in the UD case. (Ibid.) The court's review of these documents indicate that some of the causes of action in the FAC are barred by the UD judgment. (See, e.g., Pacific Mutual Life Ins. Company of California v. McConnell (1955) 44 Cal.2d 715, 724–725 [“While different causes of action were involved in the present proceeding and [the previous related] one, the parties were the same, and it...

Excerpt: ...whether Defendant failed to reasonably accommodate Plaintiff's disability during the relevant time period preceding Plaintiff's termination, i.e. August 22, 2017 – August 30, 2017. Specifically, Plaintiff presents conflicting evidence with regard to whether Defendant bears at least some of the responsibility for the breakdown in the interactive process involved in Defendant's evaluation of Plaintiff's accommodation request during the relevant t...

Excerpt: ...f specific types of necessary medical care “many times each day for the entirety of decedent's care at defendants' facilities” during specified dates (FAC, ¶ 12), is adequately specific. Also, because it alleges staff failed to follow doctor's orders regarding skin breakdown despite knowledge of the harm posed to decedent, the first amended complaint pleads acts that could constitute actionable neglect of an elder. (Sababin v. Superior Court...

Excerpt: ...rcycle Club v. Western Title Guaranty Co. (1975) 47 Cal.App.3d 747, 754 [“ ‘Prescriptive rights are established only when the enjoyment thereof is adverse, continuous and under claim of legal right, and not by consent, permission or mere indulgence of the owner of the alleged servient estate.' ”]; O'Banion v. Borba (1948) 32 Cal.2d 145, 150 [“ ‘The question as to whether or not the use of a right of way has been adverse and under a clai...

Excerpt: ... qualify as managing agents. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.) Here, the SAC alleges plaintiffs complained about decedent's care to “individuals who are believed to be charge nurses and/or nurses who were charged with the responsibility for overseeing the care and treatment provided to decedent reviewing and evaluating patient care policies and procedures, planning for improvement of medical care in the facility, and assurin...

Excerpt: ... Lind's motion described him, an industrial medicine doctor. However, Dr. Schwartz has presented evidence that she and Dr. Lind both practice “general medicine,” and as a physician she “has special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on” (Evid. Code, § 720, subd. (a)) that topic. (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970.) “Whether [her] knowledge in these areas w...

Excerpt: ...quately specific. Also, because it alleges staff failed to follow doctor's orders regarding skin breakdown despite knowledge of the harm posed to decedent, the first amended complaint pleads acts that could constitute actionable neglect of an elder. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) However, plaintiffs' references to decisions by unnamed “management” of defendant are insufficient to allege the type of ratification req...

Excerpt: ...Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment. . .”].) Here, plaintiff argues Labor Code section 3601 cannot bar his claim for negligence ...

Excerpt: ...egations regarding service. The court declines defendant's invitation to revisit this issue, since the ground defendant asserts is the same that supported the motion the court partially granted on January 25, 2019, when the court vacated the default and ordered defendant to answer. The court declined to quash service of summons, as well, and will not entertain an untimely request to<0003008600030014001300 13001b000f0003[ subd. (a).) ...

Excerpt: ...s that Plaintiff has established a reasonable excuse for the delay in amending the complaint to substitute Nathan Conner and Tisa Conner for DOES 1 and 2. Accordingly, the demurrer is overruled. b) Defendant's Motion to Strike Portions of First Amended Complaint – GRANTED, without leave to amend. A defendant may challenge the adequacy of punitive damages allegations by a motion to strike. (PH II, Inc. v. Superior Court(1994) 33 Cal.App.4th 1680...

Excerpt: ...ich may be resolved by summary judgment. (Ibid.) The evidence and inferences are in conflict in this case. Accordingly, the Court finds Defendant has failed to show there are no triable issues of fact. b) Plaintiff's Motion for Sanctions for Defendants' Refusal to Withdraw Frivolous Motion for Summary Judgment – HEARING REQUIRED. ...

Excerpt: ...n interest in the affected real property, may apply at any time to the court to expunge the lis pendens. (Miller & Starr California Real Estate, 4th ed., § 10:154; Code of Civil Procedure, § 405.30.) The standard of proof for expungement of a lis pendens is that “the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real proper...

Excerpt: ...ove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) The Court further finds that Defendant has offered adequate substantiation as to some of the challenged costs but not as to others. 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.4th 807, 816-817.) The Court notes that Defendant has withdrawn its requests for co...

Excerpt: ...n one year after she first ‘discovers' the injury and the negligent cause of that injury. Secondly, she must file within three years after she first experiences harm from the injury.” (Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1054; italics in original; Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823 [discovery is defined as the point at which “the plaintiff is aware of both the physical manifestation of the injury and negli...

Excerpt: ... not provide for such a claim against a public employer. (Gov't. Code §815(a); see, e.g. Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.). As to the remaining causes of action, the Court will grant leave to amend in this instance despite Plaintiff's failure to oppose; however, Plaintiff is cautioned that it is his burden to demonstrate how additional factual allegations can overcome the demurrer. Therefore, future fail...

Excerpt: ...deemed to be presumptively valid, subject to any objections that may be heard at the final fairness hearing and final approval by this Court. The Court notes, however, that while fifty-percent of the residue from uncashed checks is to go to California Rural Legal Assistance, the remaining fifty-percent is left undesignated. Plaintiff is directed to designate in its Motion for Final Approval of Class Action Settlement the organization to which the...

Excerpt: ...ed that Plaintiff had alleged only the glare of the sun as a dangerous condition. Plaintiff's third amended complaint alleges additional factors, such as location, failure to warn and the creation of a trap for students and drivers. Based upon the “amalgam” of these factors, reasonable minds could come to more than one conclusion as to whether a dangerous condition existed. As such, it is the jury's role to determine the facts and whether tho...

Excerpt: ...aintiff's “discovery abuses were ‘willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.' ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994.) Should the court make this order at the hearing as intended, defendant's request for issue, evidentiary and/or contempt sanctions is denied as moot. Finally, the court denies defendant's request ...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ...se inappropriate.” Additionally, once the Defendants' examiner identified the potential tests that he might employ, there was no requirement that he identify in advance all of the specific tests he would actually conduct, since the ultimate selection depends upon the Plaintiff's presentation of his injuries during the examination. ...

Excerpt: ...s' vision of the crosswalk – is transitory and has nothing to do with the design of the crosswalk. This is insufficient to allege a dangerous condition of public property. See e.g. Erfurt v. The State of California (1983) 141 Cal.App.3d 837. In Erfurt, Plaintiff alleged physical characteristics of the freeway in question were “dangerous” including: (1) the three-lane freeway split into a “Y,” (2) a concrete pillar that supported an over...

Excerpt: ...ement agreement. Of course, the Court has discretion to approve a reversionary settlement (one that provides that unpaid residual funds will be returned to defendant), but such settlements are difficult to evaluate for fairness. If a reversionary settlement is negotiated, the parties should articulate the reasons it is in the class' best interests and the trial court's order should address that issue. (See In re Microsoft I-V Cases (2006) 135...

Excerpt: ...ement agreement. Of course, the Court has discretion to approve a reversionary settlement (one that provides that unpaid residual funds will be returned to defendant), but such settlements are difficult to evaluate for fairness. If a reversionary settlement is negotiated, the parties should articulate the reasons it is in the class' best interests and the trial court's order should address that issue. (See In re Microsoft I-V Cases (2006) 135...

Excerpt: ...lludes to in his Cross-Complaint. Therefore, Defendant Thomas Trombetta has leave to file an Amended Cross-Complaint not later than February 14, 2019. b) Plaintiff Sherry Trombetta's Motion to Strike Defendant Thomas Trombetta's Unverified Answer to Verified Complaint - GRANTED, with leave to amend, and unopposed. An Answer to a verified Complaint must itself be verified. Code of Civil Procedure section 446. Defendant Thomas Trombetta's Answer to...

Excerpt: ...ovides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.)” The Court is not unsympathetic to the fact that Plaintiff is attempting to represent himself in this matter – which is undoubtedly difficult for someone without a legal background. However, the law requires the Court to hold a self-represen...

Excerpt: ... or anything else. Therefore, on the face of the pleadings, the City of Modesto states a cross-claim for Equitable Indemnity, Apportionment of Fault and Contribution and Indemnity as against Cross-Defendant Honeywell International Inc. Cross-Defendant's answer to the Cross-Complaint shall be filed not later than February 8, 2019, pursuant to California Rules of Court, rule 3.1302(g). ...

Excerpt: ...q Inc. dba Simons Auto Sales had no notice of it. Additionally, the terms of the parties' agreement as set forth in the operative complaint contain nothing about the award of attorneys' fees and costs in the event of litigation between them, so it would appear that the general rule that each party bear its own costs and fees should apply. ...

Excerpt: ...q Inc. dba Simons Auto Sales had no notice of it. Additionally, the terms of the parties' agreement as set forth in the operative complaint contain nothing about the award of attorneys' fees and costs in the event of litigation between them, so it would appear that the general rule that each party bear its own costs and fees should apply. ...

Excerpt: ...tion. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer's proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of ...

Excerpt: ...ts are awarded to Plaintiff in the amount of $3,342.37. The Court notes that the cost for the Manheim SDT, which Plaintiff believed he had inadvertently left off the Memorandum of Costs, was actually included at page 2 of 6, item 5(c). The Court also notes that the Plaintiff's opposition to the Defendants' motion to tax and/or strike contains an obvious error in terms of the argument related to the costs at page 12, footnote 5, and the Court choo...

Excerpt: ...ient to constitute causes of action for Recovery of Community Property Interest, Breach of Contract, Declaratory Relief and Unjust Enrichment, and while the allegations are not a model of certainty, they are not fatally uncertain. Defendant's Demurrers No. 7 and 14 are OVERRRULED as they fail to state any statutory grounds for demurrer and to the extent they might be construed to state general demurrers, the Court has already overruled general de...

Excerpt: ...his responses had already passed. Therefore, Plaintiff shall serve a copy of the Court's May 7, 2018, order on the Defendant at his address of record in this matter. Plaintiff shall inform the Defendant that the Court has ordered him to respond to the discovery and provide him with at least two weeks' window of opportunity to do so. If Defendant fails to respond thereafter, the Plaintiff may renew its motion. ...

Excerpt: ...de upon the exercise of the Court's discretion, the Court notes the following: The sales price from the property is $856,000. From that amount, the property closing costs of $83,754.02 and the additional referee fees of $1,525.00 shall be deducted. The resulting sum of $770,720.98 is divided by 3 interests, one for each of the sisters. Nancy is entitled to one share at $256,906.99. Marsha, because of her arrangement with her other sister, is enti...

Excerpt: ...o promote judicial efficiency or avoid jury confusion. Where liability is disputed, there is much greater reason to bifurcate the phases of the trial. A jury in this case would be presented with evidence by plaintiffs relating to the dynamics of the collision, their injuries and other elements of damages, as is necessary to prove their case. Any singular issues could be addressed in motions in limine. Bifurcation is not useful or appropriate here...

Excerpt: ...en on the “eve of trial”, leave to file compulsory cross-complaint mandatory absent bad faith). There is no bad faith alleged (let alone proved) here, so Defendant's motion is granted. Defendant shall file his cross-complaint on or before July 17, 2019. ...