Excerpt: ...hese motions were last before the Court in December 2020. While some issues remain outstanding, it appears that they may not survive the taking of two depositions. Accordingly, this Court orders that Travelers Insurance shall produce the person or persons most knowledgeable, as noticed in Core Brands' Third Amended Notice, for deposition by February 15, 2021. Travelers and Modesto City Schools are entitled to object to questions asked in the cour...

Excerpt: ...San Diego v. Gorham (2010) 186 Cal.App.3d 147, 158). In addition, Code of Civil Procedure section 128, subdivision (a)(8), gives the Court the ability to “amend and control its process and orders so as to make them conform to law and justice.” See, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582; Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72 Cal.App.3d 675. Equity and justice requires that this judgme...

Excerpt: ...tance, that any allegations that are not legal conclusions are denied. Finally, the argument that Defendants' affirmative defenses are not true is not an appropriate claim for this stage of the proceedings, when the Court is required to accept the allegations of the challenged pleading as true, except insofar as they are obviously untrue on their face or as demonstrated by facts of which the Court may take judicial notice. The Court further notes...

Excerpt: ...tiffs as a matter of law. The Court finds that the Defendant has met its burden with regard to the First, Second, Fourth, and Fifth Causes of Action at issue herein. (The Third Cause of Action will be discussed below.) The burden then shifts to Plaintiffs to produce 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 that burden with regard t...

Excerpt: ... unjust hardship. To the contrary this is a straightforward business dispute arising from the alleged breach of an insurance agency contract. Accordingly, paragraphs 57, 58, 59, 65, 66 and 79 of the Complaint and items 3 and 4 of Plaintiffs' prayer for relief are stricken. ...

Excerpt: ...t or its covenant of good faith and fair dealing. The demurrer is also sustained as to the twenty-first cause of action, for professional malpractice, which is duplicative of the fifteenth cause of action for professional negligence. The Court does not grant leave to amend as to these causes of action. The demurrer is otherwise overruled. These defendants argue that they cannot be held liable for injuries allegedly inflicted on plaintiff is his o...

Excerpt: ... to pay all lienholders, much less to leave anything for the plaintiff in the underlying litigation, the entire fund must be interpleaded. (Code of Civil Procedure section 386; see also Rutter's Guide to Civil Procedure Before Trial, Ch. 2-F (2019) at 2:470.) Plaintiff is granted 30 days, or until October 5, 2020, to file and serve an amended complaint.” Plaintiff has now filed a First Amended Complaint that does not correct the defect found in...

Excerpt: ...dants' granted Plaintiffs permission to use the property now claimed to be a prescriptive easement. The parties should be prepared to discuss the proper date and time for such a hearing. In the interim, the Court renews its Temporary Restraining Order until such time as the hearing takes place and is ruled upon. Plaintiffs' evidentiary objections to Defendants' Opposition to Motion are sustained. Plaintiffs' evidentiary objections to the Declarat...

Excerpt: ...for claims to be made against governmental employees, not governmental entities. No leave to amend is granted as to the claim against the District. The First Cause of Action is adequately pleaded as to Defendant Gordon. Defendants asserts that Gordon did not exercise supervisory authority over Plaintiff, but that question is one of fact; as to pleading, Plaintiff has pleaded his claim adequately. The Complaint alleges that Gordon specifically com...

Excerpt: ...o him, printing it out and striking the provision before signing it and returning it to Petitioner, or following the specific procedure outlined in the arbitration procedure itself, that is, by sending a notarized letter to his supervisor and to human resources. Mr. Nguyen relies heavily on Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4 th 83 to support his opposition to the petition. However, Armendariz is specifically ...

Excerpt: ... not a reason to refuse to stay this matter. Plaintiff's argument that this case is aging and that a stay of discovery will cause memories to blur and electronic data to decay gives pause, but the likely very short duration of a stay poses little possibility of prejudice to Plaintiff. Plaintiff's suggestion that the existence of another wage and hour class action proceeding in the Merced County Superior Court should preclude a stay is not persuas...

Excerpt: ... employees, not governmental entities. No leave to amend is granted as to the claim against the District. The First Cause of Action is adequately pleaded as to Defendant Gordon. Defendants asserts that Gordon did not exercise supervisory authority over Plaintiff, but that question is one of fact; as to pleading, Plaintiff has pleaded his claim adequately. The Complaint alleges that Gordon specifically complained about Plaintiff's job performance ...

Excerpt: ...�clear and convincing” evidence – it must be highly probable that the challenged act was the result of undue influence. David must present evidence that raises more than a suspicion that undue influence was used. He must prove circumstances inconsistent with voluntary action by the testator. Estate of Mann (1986) 184 Cal.App.3d 593, 607. Here, that burden is not met sufficient to warrant a writ of attachment. b) Christopher Duke's Order to Sh...

Excerpt: .... While Defendant Duarte is responsible for setting wages at the highest level, he has no involvement in determining whether the time needed to punch a time clock or doff protective equipment should be paid or not. Nor does he instruct individual employees regarding when their breaks start or end. While he acknowledges that he has responsibility for making sure that rest breaks and lunch periods are provided to employees in the first instance, th...

Excerpt: ...dence demonstrating the existence of a material factual dispute preventing adjudication of the subject claims. Plaintiff has failed to carry her burden in this regard. Specifically, Plaintiff submitted no admissible evidence establishing that Defendant McMillian concealed or misrepresented material information in connection with her fiduciary duty to Plaintiff concerning the subject transaction. Accordingly, Plaintiff cannot establish the require...

Excerpt: ...fficiency of the plea in abatement, and then to order the actions consolidated, regardless of defendant's opposition.” (5 Witkin, Cal. Proc. 5th Plead § 1138 (2020); Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 217-218.) Second, there are claims raised in this case that are not at issue in either of the other two pieces of litigation Defendant points to. The Dancy matter concerns only exempt employees, while one of the subclasses in ...

Excerpt: ...ELD LLC (“Pontus Mag”) against cross‐defendants BARBER AUTO MALL PROPERTIES, L.P.; BARBER FAIRFIELD MANAGEMENT COMPANY, LLC; and RONALD L. BARBER (“Barber Defendants”) is subject to arbitration and the scope of that arbitration. It is undisputed that the Real Estate Purchase Agreement (“REPA”) assigned to Crosscomplainant contains an arbitration clause. Any party to a contract containing an arbitration provision may file a petition ...

Excerpt: ...te elements clear. Defendants argue that the statute of limitations has run as to the cause of action for breach of the implied covenant of good faith and fair dealing. As to the facts alleged in the First Amended Complaint in support of the cause of action, Defendants are correct. However, in the event that Plaintiff is able to allege other facts that would support such a cause of action, the Court will not foreclose the attempt. Plaintiff is th...

Excerpt: ... Executive's fault in this matter could be for as much as 100% of Plaintiff's damages. Inasmuch as Plaintiff has no viable claim against Executive itself, the statute of limitations having run, the settlement must be measured against the claim made by Core for indemnity and contribution, and this settlement is out of proportion to Executive's potential liability for Core's claims. Executive has much more insurance available than it is proposing t...

Excerpt: ...d Complaint for Reverse Validation; b) Plaintiff's Motion for Stay of Proceedings; c) Defendants Motion to Sever Grassland Groundwater Sustainability Plan Claims; d) Defendants' Motion for Separate Trial; e) Defendant Aliso Water District Groundwater Sustainability Agency's Motion to Change Venue; f) Defendant Farmers Water District Groundwater Sustainability Agency's Joint Motion to Sever and/or to Transfer and Change Venue; g) Defendant County ...

Excerpt: ... sale of the property in compliance with Code of Civil Procedure sections 873.600 through 873.690 The referee shall have authority to contract for independent services that are reasonably necessary to obtain the best outcome for the parties, including hiring of a real estate agent, disposal of garbage and abandoned personal property, may give authority to have limited, and may give access to the property for purposes of clean-up and removal of pe...

Excerpt: ...f action lies against a real estate agent for allegedly providing incorrect information regarding the value of a property, whether that information is provided negligently or, as Plaintiffs allege, deliberately in order to obtain a commission before its listing agreement expired. Defendant further makes arguments, particularly in its Reply, that depend upon the proof of facts that are not alleged in the First Amended Complaint and not susceptible...

Excerpt: ...otion reveals that such disputes exist as to the uniformity, application and effect of the Defendant's rest policies, negating the Plaintiff's ability to demonstrate on a classwide basis or as a matter of law, as applied, the result of the Defendant's policies establishes the Labor Code violations alleged. While Plaintiff is certainly correct that Defendant may not contravene binding judicial admissions made in response to lawful requests for adm...

Excerpt: ...otion reveals that such disputes exist as to the uniformity, application and effect of the Defendant's rest policies, negating the Plaintiff's ability to demonstrate on a classwide basis or as a matter of law, as applied, the result of the Defendant's policies establishes the Labor Code violations alleged. While Plaintiff is certainly correct that Defendant may not contravene binding judicial admissions made in response to lawful requests for adm...

Excerpt: ...ust be interpleaded. (Code of Civil Procedure section 386; see also Rutter's Guide to Civil Procedure Before Trial, Ch. 2-F (2019) at 2:470.) Plaintiff is granted 30 days, or until October 5, 2020, to file and serve an amended complaint. ...

Excerpt: ...mary Judgment against Plaintiff J Marchini & Son Inc, or, Alternatively, Motion for Summary Adjudication; d) Defendant Duarte Nursery Inc's Motion for Summary Judgment against Plaintiffs Nichols Farms Inc; Charles and Susie Nichols dba Sierra View Farms; Carolyn Nichols; Eileen Nichols Christian; Charles Nichols, and Susie Nichols, or Alternatively, Motion for Summary Adjudication; e) Defendant Duarte Nursery Inc's Motion for Summary Judgment, or...

Excerpt: ...efendant WUSD has provided adequate responses and proper objections to these discovery requests. Plaintiff's motion to compel further responses to special interrogatories, set two, from defendant WUSD is GRANTED IN PART. (Code Civ. Proc., § 2030.300.) While defendant WUSD's vague and overbroad objections are proper, a responding party must answer an interrogatory to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).) Accordingly, def...

Excerpt: ... Plaintiff's failure to shut off power to the school building undergoing the power surges when other power strips in the building began to fail. The failure to the power strip was a secondary cause because it merely permitted the loss. Plaintiff argues, to the contrary, that the surge protector was itself the direct cause of the fire, so that the doctrine does not apply at all. The Court is persuaded that the failure of the surge protector was a ...

Excerpt: ...e product of dividing the net settlement by the number of class members. The Court also would like an explanation of how the settlement administrator will hold and/or invest the settlement funds as they are paid in over a 21 month period. Finally, the Court questions whether it is appropriate to give final approval to the settlement before the settlement proceeds are distributed to the class members. Counsel should be prepared to discuss these is...

Excerpt: ...sclose, both technical matters that can be easily corrected. Otherwise, the 2 nd, 3 rd, 4 th and 5 th causes of action are pleaded in sufficient detail. The Demurrer as to the 2 nd, 3 rd, 4 th and 5 th causes of action is therefore sustained. The Demurrer as to the 10 th and 11 th causes of actions is overruled. Plaintiff is not required to plead specifically which business it lost on what contracts. The Demurrer as to the 13 th and 14 th causes ...

Excerpt: ... of “mistake, inadvertence, surprise, or excusable neglect” to warrant vacating the default judgment under Code of Civil Procedure section 473, subdivision (a). b) Defendants' Demurrer and c) Defendants' Motion to Strike – The Demurrer is SUSTAINED with leave to amend and the Motion to Strike is GRANTED. Plaintiff has not alleged any facts tending to prove that the moving Defendants acted in concert or conspiracy with the defendants who wer...

Excerpt: ... Complaint by producing evidence of each element of the cause of action asserted therein. (Code Civ. Proc. §437c(p)(1).) The burden then shifts to Defendant to demonstrate that a triable issue exists as to one or more material facts as to the cause of action or a defense thereto. Defendant has failed to carry her burden in this regard and has produced no controverting evidence. Moreover, Defendant's opposition is deficient in that she entirely f...

Excerpt: ... off calendar, and the parties will be required to re-notice those motions when the stay expires. The Court further GRANTS IN PART AND DENIES IN PART Plaintiff's request for a determination regarding the tolling of the 5 year statute contained in Code of Civil Procedure section 583.310. The Court finds that Code of Civil Procedure section 583.340 requires that the five-year time period be computed excluding any time during which the litigation wa...

Excerpt: ...ficant interest in proceeding expeditiously and the potential for prejudice exists due to the delay that would be imposed by a further two-year stay of the entire civil proceeding. Therefore, the Court orders that all discovery proceedings directed to Defendant shall be stayed until such time as the criminal action has been dismissed with prejudice. Discovery directed to the corporation and/or non-party witnesses may proceed, subject to the Court...

Excerpt: ...President during the relevant time. However, Plaintiff has failed to make any case that Dr. Herr bears such responsibility. There is no genuine issue of material fact regarding Dr. Herr's lack of liability for Plaintiff's claims, and summary judgment is therefore appropriate. Defendant Natalyn Bergman, on the other hand, testified via declaration that she saw Defendant only once to discuss one of his medications, and that this was her “one and ...

Excerpt: ...orp. (2004) 34 Cal.4 th 979. The Robinson Helicopter courtdid not rule that a fraud cause of action is barred against the manufacturer of a product that causes economic injury, and such is not California law. (See, e.g., Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4 th 70, 78 (“when one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort”).) Plaintiff is also correct in...

Excerpt: ...e anything to do with Wiley Chandler for fear that he will sue. Second, Foster complains of invasions of its own privacy and that of its directors and stockholders. Third, Foster questions the relevance of the documents sought. Finally, Foster argues that the subpoena is governed by Evidence Code section 1560, and thus that sanctions are not available to CEMG. First, Mr. Chandler waived any objection he might have to Foster's production of docume...

Excerpt: ... arbitrators if the method selected by the parties fails (Code Civ. Proc., § 1281.6); grant a provisional remedy, “but only upon the ground that the award to which an applicant may be entitled may be rendered ineffectual without provisional relief” (Code Civ. Proc., § 1281.8, subd. (b)); and confirm, correct, or vacate the arbitration award (Code Civ. Proc., § 1285). Absent an agreement to withdraw the controversy from arbitration, however...

Excerpt: ...causes of action for negligence, fraud, breach of the implied covenant of good faith and fair dealing, breach of the Business and Professions Code and to quiet title, and she is entitled to attempt to do so. In addition, Plaintiff's third cause of action, for an accounting, fails to set forth any relationship between her and Defendants that would give rise to an entitlement to that relief, but, again, she may be able to do so. Plaintiff is theref...

Excerpt: ...te causes of action for negligence, fraud, breach of the implied covenant of good faith and fair dealing, breach of the Business and Professions Code and to quiet title, and she is entitled to attempt to do so. In addition, Plaintiff's third cause of action, for an accounting, fails to set forth any relationship between her and Defendants that would give rise to an entitlement to that relief, but, again, she may be able to do so. Plaintiff is the...

Excerpt: ... determined to rule on the merits of the demurrer, as follows: Based upon review of the moving and supporting papers, the Court SUSTAINS Defendant 7/11, Inc.'s Demurrer to the First Cause of Action in its entirety. The Complaint admits that Plaintiff was injured during the course of his employment with 7/11, Inc.; therefore, Plaintiff's exclusive remedy lies in the Worker's Compensation system. As Plaintiff has not opposed the demurrer and it doe...

Excerpt: ...majority of 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.) This includes time spent to prepare this motion and to oppose Defendants' Motion to Tax Costs. In its determination of reasonable hourly rates, the Court has considered the skill and experien...

Excerpt: ...While a trial plan might be useful in determining whether a class should be certified in the first instance, as discussed in Duran, in this case the class was certified by Order dated June 25, 2019. Defendant's motion is thus an attempt to challenge the Court's decision to certify the class when the time to bring a motion for reconsideration has passed and there is no new evidence or new law to serve as a basis for such a motion. That said, a tri...

Excerpt: ... a judgment on equitable grounds due to lack of due process or extrinsic fraud or mistake also does not apply here. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-473.) ...

Excerpt: ...can Arbitration Association, … or any other organization to conduct the arbitration subject to our approval.” Plaintiff contends that this sentence makes AAA one of her choices, and that 2WIN's approval is required only if she chooses an entity other than AAA. Defendant contends that the sentence gives it absolute veto power over any choice Plaintiff might make. The Court concludes that the sentence is ambiguous, and therefore should be const...

Excerpt: ...ing of the Court is as follows: Pursuant to the Court's Order of September 17, 2019, the Court has read and considered the supplemental briefing and affidavits submitted in response to the Court's ruling. In light of the concerns and objections raised by the Public Defender's office as to production of the records concerning Defendant Brandon Patrick Whitton, who is also a defendant in a pending criminal prosecution in this forum, and in light of...

Excerpt: ...ing of the Court is as follows: Pursuant to the Court's Order of September 17, 2019, the Court has read and considered the supplemental briefing and affidavits submitted in response to the Court's ruling. In light of the concerns and objections raised by the Public Defender's office as to production of the records concerning Defendant Brandon Patrick Whitton, who is also a defendant in a pending criminal prosecution in this forum, and in light of...

Excerpt: ...lic interest.” The social media posts that underlie the causes of action in the cross-complaint were made” in a place open to the public or a public forum.” (Code Civ. Proc., § 425.16, subd. (e)(3)); see Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895-898 [finding the internet, generally, is a public forum]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476 [finding an HOA newsletter was a public forum because it was “...

Excerpt: ...e and finds it needs additional information before it can enter an order that both adjudicates the MSJ/MSA and responds to the reference to a need for a state law determination that is contained in the remand order and related documents. The court therefore continues the MSJ/MSA. The court is aware that this continuance will interfere with the previously scheduled trial date, and the trial currently set for November 5, 2019, is hereby VACATED. Ea...

Excerpt: ...are listed in Code of Civil Procedure section 430.10. Because section 430.10 does not authorize demurrer on the ground that a cause of action is “duplicative,” the court is disinclined to consider the demurrer to the first three causes of action. The court notes, however, that the opinion in Barris v. County of Los Angeles (1999) 20 Ca1.4th 101 acknowledged the existence of a cause of action for violating 42 U.S.C. section 1395dd. To the exte...

Excerpt: ...ntiff Karen Stephanie Jones's Motion to Compel Defendant Valley First Credit Union to Provide Further Responses to Plaintiff's Request for Production of Documents (Set One) and Request for Monetary Sanctions – a) GRANTED, sanctions of $960 imposed against defense counsel. The kind of pre-certification discovery Plaintiff seeks is routinely allowed in California. (See, e,g., Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App. 4th 958; Puer...

Excerpt: ... in Department 22. As this Court's previous rulings have indicated, the Court is inclined to order at least some amount of production of documents in response to the two motions to compel by Cross-Defendant Doctors Medical Center (DMC). However, in light of the opposition by the County of Stanislaus to the motions that request that it respond to DMC's requests for production of documents, the Court has developed concerns that a conflict of intere...

Excerpt: .... (Code Civ. Proc., § 2024.020, subds. (a), (b).) Objector has failed to demonstrate that the court intended to reopen discovery when it continued trial on May 10, 2019. The declaration in support of that motion and the motion itself do not mention a need for discovery beyond that which the court had already compelled, and the court granted all of the relief objector sought with respect to the trial date. In addition, the court denies objector's...

Excerpt: ...tion for Protective Order – DENIED. Defendant Amazon.com, Inc. moves to quash the deposition of the manager of its Tracy facility, and plaintiff moves to compel the same deposition. The court finds this deposition is relevant to plaintiff's claim for punitive damages, even though defendant now concedes liability on compensatory damages. Defendant has failed to support its claim that having the manager sit for deposition would be unduly burdenso...

Excerpt: ...ition, he never explicitly testified that this alleged failure was the cause of plaintiffs' injuries. D&D's only other evidence on this point is a set of discovery responses by the Huff defendants, but D&D may not use discovery responses by the Huff defendants against plaintiffs on this motion. (Code Civ. Proc., § 2030.410.) The court also questions the usefulness of discovery responses that are made in relevant part on information and belief. (...

Excerpt: ...to the well. “While the Court may interpret the terms of the parties' settlement agreement, ‘nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.' ” (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374.) In this case, the language of the settlement agreement is at least somewhat ambiguous as to wh...

Excerpt: ... not have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christoph...

Excerpt: ...ot have jurisdiction to step into ongoing arbitrations to “enforce” anything short of a final award. The general rule is this: jurisdiction does not migrate from the arbitrator to the trial court unless the arbitrator has made a ruling disposing of all the issues. See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5 th 394, 402-405; Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5 th 1125, 1139-1140; Cinel v. Christopher...

Excerpt: ...ot support its motion with affirmative evidence negating an essential element of the plaintiff's case. Instead, the moving defendant may point to the absence of evidence to support the plaintiff's case. Defendant Open Door Services, Inc. has done so here, and thus, the burden shifted to the Plaintiff to present evidence demonstrating there is a triable issue of material fact. In opposition, and despite Defendant's objections to the evidence Plain...

Excerpt: ...ust that Dabblicious may have breached oral agreements, but also that it beached the contract itself by failing to conduct batch testing and allow remediation as allegedly required by industry standards. Dabblicious's attack on the third cause of action for fraud fails because, although JDI did not provide the name of the employee who met with its representative to discuss the processing agreement, it gave a month, year and location for the meeti...

Excerpt: ...n this case. No declaration of any kind accompanies the motion, which does not contain the information that was supposed to be included in the declaration. The court is therefore missing facts essential to its determining the motion. In addition, the court agrees with the opposition that plaintiff has failed to articulate a viable theory of damages to support a cause of action for either trespass or conversion. ...

Excerpt: ...th regard to the alleged existence of a dangerous condition at the subject intersection. Specifically, Plaintiffs have demonstrated material disputes of fact concerning, at a minimum, Defendant's Separate Statement of Undisputed Material Facts 3, 8, and 9. For example, the Court finds that factual issues exist as to whether the traffic controls in place at the intersection at the time of the accident were out of compliance with applicable regulat...

Excerpt: ...LC has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Defendant shall provide answers, without objection, within 14 days of service of notice of entry of the order. Further, the Court finds that Plaintiff is entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the above-described discovery requests. (Code Civ. Proc. �...

Excerpt: ..., and plaintiffs did not need to meet and confer about the responses before filing this motion. (Cf. Code Civ. Proc., § 2031.300[no meet and confer needed if no response] with Code Civ. Proc., § 2031.310, subd. (b)(2) [meet and confer declaration required for motion to compel further responses to discovery].) Because defendant is obligated to provide responses that are as “as complete and straightforward as the information reasonably availabl...

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: ... for the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of ...

Excerpt: ... for the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of ...

Excerpt: ...sing statement and the referenced declarations and supporting exhibits. However, Defendants' failure in the first instance to supply sufficient evidence to negate the existence of a triable issue regarding the third cause of action for fraudulent inducement/concealment obviates further consideration of the evidentiary objections by either party. In each case, Defendants' proffered “fact” consists instead of a litany of conclusory and conteste...

Excerpt: ...ective Order to Modify the Subpoenas to: 1. Memorial Medical Center, 2. Memorial Medical Center/Billing Dept., 3. Memorial Medical/Radiology Dept., 4. Sutter Physical Services/Recovery Dept. TPL Unit, and Request for Sanctions in the amount of $1,810.00 against defendants and its attorney of record; c) Plaintiffs' Motion to Quash Defendant's Subpoenas for Medical Records; or in the Alternative for a Protective Order to Modify the Subpoenas to: 1....

Excerpt: ...e and import of federal preemption. Federal preemption, contrary to Defendant's assertion, is not merely a sub-species of “choice of law.” To the contrary, it goes to a trial court's fundamental subject matter jurisdiction, i.e., where federal law preempts state law it is not simply a question of which law one “chooses” to employ; it is instead a binary mandate that state law be disregarded in favor of federal law by virtue of the Suprema...

Excerpt: ...bility theory. (Chavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 617; La Vista Cemetery Assoc. v. Am. Sav. & Loan Ass'n (1970) 12 Cal.App.3d 365, 369.) The same holds true for Plaintiff's “aiding and abetting” theory. (Casey v. U.S. Bank Nat'l Ass'n (2005) 127 Cal.App.4th 1138, 1145.) The Third Cause of Action, as amended, fails to allege and plead with particularity the facts required for a conspiracy theory for the reasons set forth in De...

Excerpt: ...523-524; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206; Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238 [reasonableness of the misconception and justifiability of the failure to determine the correct facts or law are discretionary determinations for the trial court].) Acting pro se, moving party initiated this action by filing one suit and naming each of the defendants independently. His testimony indicated an awareness of the defendant wi...

Excerpt: ...and analogous to those of section 473(b). (Mannino, supra, 142 Cal.App.3d at 779.) Where, as here, the responsibility for the waiver is solely attributable to the attorneys, the mandatory relief provisions, by analogy, strongly suggests relief should be granted based on the remedial purposes of the statutes in question. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1228.) The Court finds that timely supplemental responses were made by moving party...

Excerpt: ...s stated, or which could be stated” and the voluntary dismissal with prejudice of Plaintiff's Complaint. Unlike the cases cited by both parties, Defendant's statutory offer contained no exemplar release or any express mention of the terms. As such, it is ambiguous as to any limitation of the “could be stated” claims to those arising out of the claim or claims actually raised in the case at bar. A section 998 offer must be reasonably certain...

Excerpt: ...or the purpose of establishing an official record or evidentiary fact by law, such as the court records and documents evincing title. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1113(l); Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 743; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Regarding the first cause of action, for violation of Civil Code section 2937, the Court's judicial notice of the existence of th...

Excerpt: ...and/or unreasonable, such that the burden shifts to Plaintiff to show that the items charged were for matters necessarily 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....

Excerpt: ...on Defendants Southern California Permanete Medical Group and the Permanete Medical Group, Inc.'s Demurrer to Plaintiff's First Amended Complaint The Court grants Defendants Southern California Permanete Medical Group and the Permanete Medical Group, Inc.'s Request for Judicial Notice. Evidence Code § 452(h). Judicial Notice is taken of Defendants' Exhibit A. The court sustains Defendants Southern California Permanete Medical Gro...

Excerpt: ... notice of its preparation by the reporter from the raw shorthand marks, and arguably not until signed and/or certified as such by the reporter itself. The intended use of the transcript is for trial and the reporter's sealing and certification are part and parcel of use and admiss<005700030049004c005100 47005600030057004b00480003> motion timely as the deposition was re-noticed, obligating objections to have been served upon such re-noticing, abs...

Excerpt: ... party's notice of intent are either not authorized statutory causes for new trial nor coherently related by moving party to an authorized statutory cause, or else moving party did not address or support such non-statutory causes in moving party's memorandum and affidavits. (Code Civ. Proc. § 659(b) [new trial motion limited to statutory grounds in notice of intent]; Code Civ. Proc. § 659a [supporting brief and affidavits required after filing ...

Excerpt: ...eking relief from default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-G, § 5:401.) The Court further finds that relief from entry of default will result in no demonstrable prejudice to Plaintiff. (Elston, supra, 38 Cal.3d at p. 233; Fasuyi, supra, 167 Cal.App.4th at p. 696 [“very slight evidence” required to set as...

Excerpt: ...the causes of action set forth in Plaintiff's Complaint by producing evidence of each element of the respective causes of action asserted therein. (Code Civ. Proc. §437c(p)(1).) Therefore, Plaintiff is entitled to judgment as a matter of law. The Court notes that Plaintiff submitted a proposed order which includes a provision for awarding costs. However, no Memorandum of Costs or other description of the claimed costs has been filed to date. Mor...

Excerpt: ...th the Court's Minute Order of December 19, 2019, which did not confirm the tentative ruling but instead set the matter for contested long-cause hearing which has yet to occur. Consequently, moving party's motion to compel response to the subject discovery is hereby GRANTED. Opposing party shall serve complete, verified responses without objection within fifteen (15) days of this Order. That said, moving party does not dispute that the opposing p...

Excerpt: ...present hearing. The Court considers that rejection on this purely procedural basis would be a substantial waste of judicial resources. Even worse, denial for this reason would simply result in additional subpoenas for the identical records being directed to the actual custodians, the most important of whom are in fact under the auspices of Defendant County, whose counsel would then interpose the exact evidentiary privilege raised in this proceed...

Excerpt: ...nable person on inquiry notice that EMC's diagnosis may have been incorrect. (See, e.g., Rose v. Fife (1989) 207 Cal.App.3d 760, 768–769.) All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important” ob...

Excerpt: ...of material fact regrading whether Robert intended for his son, Joe, to receive trust distributions without the consent of the independent trustee.All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important...

Excerpt: ...of material fact regrading whether Robert intended for his son, Joe, to receive trust distributions without the consent of the independent trustee.All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important...

Excerpt: ...ition fees, or $4,328.10 * All of the mediation fees, or $2,925, because these costs do not appear “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd.(c)(2).) The court finds Borra's November 7, 2018 offer under section 998 was timely because subdivision (b)(3) of section 998 states: “A trial shall be deemed to actually commence at the beg...

Excerpt: ...llful, 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.) Plaintiff is to appear to update the court on his efforts to comply with his discovery obligations. The court grants the request for judicial notice of the complaint, minute orders dated August 23, 2018 and September 10, 2018, defendan...

Excerpt: ... admission numbers 23, 37 and 38, especially when the court considers the definition of, “YOU,” that Plaintiff used in the discovery requests, cannot be answered with enough accuracy to justify subjecting the Souzas to cost of proof sanctions should they decline to admit an act of which they may be unaware. Similarly, form interrogatory numbers 9.1 and 9.2 ask the Souzas to respond to a multitude of allegations, over many years, involving num...

Excerpt: ...r[s embraced by requests for admission asking him to admit he caused damage to defendant's property]” (Code Civ. Proc., § 2033.420, sub. (b)(3)), since the jury found plaintiff had been negligent but no causation was present. In addition, even if the evidence shows plaintiff should have admitted that he broke and/or removed from the ground some of defendant's vines, the court finds these particular admissions were “of no substantial importan...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ...If the parties, through counsel, are unable to agree on 3 potential appointees, then each party shall separately submit 2 such recommendations. Such recommendations for potential appointees, together with a statement of each individual's qualifications, shall be submitted to the Court within 20 days. b) Defendant's Motion for Stay of Civil Proceedings – GRANTED, in part. The Court has considered the nature and extent of the competing interests ...

Excerpt: ...he trust in Santa Clara County by virtue of his June 2016 “Petition for Settlement of Final Account” filed in Case No. 1-15-PR-177570; and the fact that Ms. Webb in her capacity as the current successor co-trustee plans to continue administration of the trust in Santa Clara County Case No. 1-15-PR-177570 by preparing an additional accounting of the trust and filing it in Santa Clara County. The motion to dismiss the petition is DENIED. Additi...

Excerpt: ...of $383 and Plaintiff has not submitted a cost bill or otherwise substantiated such items by declaration in connection with the motion. Therefore, Plaintiff's counsel shall submit a revised form of order and judgment without reference to the specific amount of the claimed costs. Plaintiff may pursue the recovery of same through the statutory procedures for submission of a cost bill. ...

Excerpt: ...er, the Court finds that Plaintiff is entitled to an award of monetary sanctions in the amount of $360 against Plaintiff and her counsel herein, to be paid to Plaintiff's counsel within 14 days. (Code Civ. Proc. §§2030.290(c), 2023.010, 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) b) Plaintiff's Motion to Compel Responses to Demand for Production of Documents and Things and Request for Monetary Sanctions – GRANTED, and unopposed; The Cour...

Excerpt: ... and that Nichols has failed to meet his burden in opposition. 1. First cause of action for injunctive relief “Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Because all causes of action fail as described below, there is no valid claim on which the base an injunction. 1. Second cause of action for inverse condemnation The first amended complaint...

Excerpt: ...'s alternative arguments do not provide sufficient grounds for granting the motion. Leave of court is not required before filing an amendment pursuant to Code Civ. Proc. §474 in Stanislaus County. Under the circumstances, Defendant has not demonstrated sufficient prejudice to justify denial of Plaintiffs' ability to pursue their cause of action against Mr. Bauman on the basis of delay. ...

Excerpt: ... set forth appropriate material facts and states only allegations and legal conclusions, which are insufficient to support summary adjudication. Moreover, the Separate Statement fails to demonstrate the absence of material factual issues bearing on the existence of a contractual relationship between the parties. As to the Third Cause of Action for Breach of Fiduciary Duty, the Court finds that Defendants, as the moving parties, have met the burde...

Excerpt: ...laintiff's counsel. Under the circumstances, the Court finds that all matters currently on calendar for August 10, 2018 shall be continued to October 16, 2018. In order for Defendant's motion to be heard, however, proper service must be accomplished and proof service filed with the Court. (Code Civ. Proc. §1005; Cal. Rules of Ct., rules 1.21 and 3.1300.) ...