Excerpt: ...ttlement agreement. Therefore, the Court finds that the circumstances supporting entry of a preliminary injunction preventing Petitioner from “selling, transferring, or otherwise encumbering” the real property located at 10501 Alvarado Road, Oakdale, California no longer exist. The preliminary injunction shall therefore be dissolved. With regard to the other pertinent points made by the parties in their briefing, the Court finds as follows (a...

Excerpt: ...al.App.4th 873, 885. Additionally, attorneys hired by a trustee to aid the trust are entitled to reasonable fees paid from the trust assets (Kasperbauer v. Fairfield (2009) 171 Cal.App.4th 229, 235) and the Court has inherent equitable authority to sanction a beneficiary when the beneficiary brings or maintains an unfounded suit against the trustee. (Emphasis the Court's.) Here Petitioner and her counsel, in failing to notify Respondents that Pet...

Excerpt: ...ive conduct, irrespective of whether such communications may be barred from imposing liability as a matter of affirmative defense. (Shade Foods v. Innovative Products Sales & Marketing (2000) 78 Cal.App.4th 847, 915, 93 C.R.2d 364 [litigation privilege did not bar introduction of evidence involving settlement offers or answers to interrogatories to prove bad faith in action against insurer].)” (5 Witkin, Summary 11th Torts § 660 (2021); see al...

Excerpt: ...; d) Plaintiff's Motion for an Order Deeming the Truth of Facts and Matters in Requests for Admission, Set One, Propounded to Defendant, Maria Islas; Request for Monetary Sanctions of $3,035 – Motions (a.), (b.) and (c.)—GRANTED, in part; CONTINUED, in part; Motion (d.)—CONTINUED, on the Court's motion. With regard to motions (a.), (b.) and (c.), Defendant Islas is ordered to provide complete and verified responses without objections other ...

Excerpt: ...ry. (Cal. Rules of Ct., rule 3.1345(a)(1)-(5), (b).) The Court sees no purpose to its utilization here and this objection is overruled. The subject discovery consists of 424 separate Requests for Admissions, Form Interrogatory 17.1 that, itself, contains three subparts for facts, witnesses and documents, and a blanket Request for Production for any and all documents identified in 17.1. The end result is that the propounding party is effectively s...

Excerpt: ...t Law, Set One, and Request for Production of Documents, Set One; and Request for Monetary Sanctions – a) GRANTED, in part. The order to compel responses to the subject discovery without waived objections is granted. Defendant shall serve responses without the asserted objections within ten (10) days of this order. In light of Defendant's filed Notice of Non-Opposition, the amount of sanctions awarded will be reduced to Six Hundred Twenty-Five ...

Excerpt: ... documents in support of the Defendant's own affirmative defenses and that Defendant's investigation is “ongoing.” (Liberty Mutual Fire Insurance Company v. LCL Adm'rs, Inc. (2008) 163 Cal.App.4th 1093.) Accordingly, Plaintiff's motion is granted, in part, and Defendant shall provide further substantive responses within two (2) weeks of this Order. That said, no opposition was filed, Plaintiff did not file a reply, and Defendant's counsel of ...

Excerpt: ...7 Cal.4th 1097, 1104–1105 [recognizing that FEHA exemption of religious/non-profit entities does not preclude public policy claim under Cal. Const., art. I, sec. 8]; Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 232–233 [trial court erred in sustaining defendant's demurrer as to plaintiff's wrongful termination claim based on defendant's retaliation in violation of Section 8's policy against race and sex discriminati...

Excerpt: ... of jurisdiction prevents this Court from adjudicating the matters stated therein. In addition, the pleading fails to state facts constituting a cause of action and is uncertain. (Code Civ. Proc. §§430.10(c),(e),(f).) Under the circumstances, and in view of the lack of opposition, it is clear that Plaintiff is unable to amend her claim to state a viable cause of action herein. Therefore, the demurrer is SUSTAINED, without leave to amend. 2. The...

Excerpt: ...oner filed this motion. It is inappropriate to submit additional material related to a matter under submission without leave of court. Further, although filed prior to any announcement of the Court's decision, Petitioner's motion appears to be a veiled motion for reconsideration. Simply put – the law does not authorize Petitioner's motion. Although the Court considered making an additional award of attorneys' fees and costs to Respondents for b...

Excerpt: ...th Causes of Action and has identified material factual disputes with regard to the elements of each of the challenged claims, i.e. whether her termination was substantially motivated by discriminatory and/or retaliatory animus under FEHA and/or CFLA; whether Defendant's attendance policies interfered with Plaintiff's rights under CFRA, and whether Defendant's termination of Plaintiff violated public policy as a result of unlawful acts under FEHA...

Excerpt: ...gligence. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [property owner's duty inferred from assertion that defendant owned and managed property]; 4 Witkin, Cal.Proc.5th (2020) § 580.) Here, the complaint contains a single cause of action for premises liability. Defendant is not alleged to be negligent solely on the basis of ownership, but also on the basis that it negligently “maintained, managed and operated” said premises. But the ...

Excerpt: ...Set One to Paula Roberts – Nos. 1-5 - GRANTED. 5. Form Interrogatories - General, Set One to Paula Roberts – Nos. 8.2 – 8.7 - DENIED. Counsel shall serve further code compliant responses to the requests for production of documents and special interrogatories not later than August 13, 2021. Discovery is supposed to be self-executing. The Court notes a more productive and civil “meet and confer” process would likely have prevented the nee...

Excerpt: ...t. (Code Civ. Proc. §871.10(d).) However, the Court finds that the provisions of Code Civ. Proc. §871.10(e) apply to the above-described claim, such that after submission of the amended pleading the action must be stayed until November 1, 2021 as required by that statute. The motion is DENIED as against Defendant Cuevas. To the extent that the proposed amended pleading seeks to add a new defendant who was not previously included as a named or f...

Excerpt: ...ply is limited to rebuttal of the opposition by its very nature. As such, without good cause and leave of court, new facts or evidence are not within the scope of a reply. Other procedural mechanisms exist for this purpose and, in this regard, the Court has granted the parties' stipulation to continue the trial date with a limited re-opening of discovery. Presumably, if the facts and evidence so warrant, Defendant will avail itself of the appropr...

Excerpt: ... acquired].) Further, the complaint alleges all three statutory grounds. (Code Civ. Proc., § 1240.030; Complaint, ¶ 6-11.) Accordingly, the general demurrer is overruled. With respect to the special demurrer for uncertainty, the Possession & Use Agreement (agreement) explicitly contained an understanding that the “purpose of this Agreement is to allow [Plaintiff] to proceed with construction and operation of the Rail Facilities on the Parcel ...

Excerpt: ...d facts, Nos. 34 – 37, raise further triable issues of material fact. Moving party's evidentiary objections to opposing party's evidence are overruled: the Court sees no basis for requiring expert witness testimony as to non-scientific and non-technical matters of identifying products and components within the personal knowledge of the affiant; photographs of the subject chair and the component catalog are non-testimonial and have independent l...

Excerpt: ...r justification that such expenses were reasonable and necessary. (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1621; cf., Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30 [overnight messenger fees recoverable if reasonable and necessary].) The Court denies the motion to tax deposition costs in the amount of $866.60. The Bankruptcy proceeding in which the examination and transcript were obtained was directl...

Excerpt: ... face of the pleading or matters judicially noticed]; Deyo v Kilbourne (1978) 84 Cal.App.3d 771, 779 n2; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (TRG 2021) Ch. 7(I)-B, § 7:169 [defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence].) The Court grants Plaintiffs' request for judicial notice pursuant to Evidence Code section 452, subdivision (d), as unopposed and without ob...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...minent domain action after a project is started or even completed, and the City even cites to the applicable statutes by which a court order for prejudgment possession is obtained in such proceedings, the City of Modesto failed to avail itself of such timely proceedings. The City of Modesto opted to purchase the property interests at issue rather than commence eminent domain proceedings. It cannot now obtain a right to condemn the same property i...

Excerpt: ...nts finding Plaintiff is not entitled to deduct its own fees and costs from the settlement fund before interpleading the funds with the Court for adjudication of the competing interests thereto. While interpleader is an appropriate remedy to the disputes arising from the fact that the settlement was too small to pay all lienholders, much less to leave anything for the plaintiff in the underlying litigation, the entire fund must be interpleaded. (...

Excerpt: ...of costs appear to be proper and reasonable, as do all but one of the “costs” included on Petitioner's memorandum here, the burden is on the party challenging costs to show otherwise. Ladas v. California State Auto. Assn (1993) 19 Cal.App.4th 761. The challenging party may meet its burden by showing the entire costs bill is improper rather than challenging particular items. However, conclusory allegations that an item was neither necessary no...

Excerpt: ...ed a general release of all claims as well as a waiver of Civil Code section 1542 (Exhibit U to Defendant's Compendium of Evidence.) This language contained in the general release is plain on its face. Plaintiff argues that the release is invalid and unenforceable because she did not believe she was releasing and waiving all previous acts of discrimination, harassment and retaliation. She contends that there must be independent evidence, separate...

Excerpt: ...court OVERRULES the demurrer. The FAC retains allegations that defendants Trevethan and Gordon violated Education Code section 44113, and the demurrer gives no reason to think these allegations are insufficient. (See, e.g., Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of th...

Excerpt: ...ary Sanctions – GRANTED, sanctions imposed in the reduced amount of $1,700. a) The motion is moot to the extent to which it requests an order compelling defendant to produce a deponent, as defendant has agreed to do just that. The court orders defendant to produce a deponent in response to plaintiffs' subpoena within 30 days of this order. The court also orders that deponent to produce documents on the following conditions: All objections based...

Excerpt: ...actually be awarded under section 1021.6 until “the trier of fact determine[s] that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or . . . the indemnitee ha[s] a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict” (§ 1021.6), the court sees no reason why the request for fees should not be made in the pleadings, on the assumption that...

Excerpt: ...go v. Empire Today LLC (2012) 205 Cal.App.4th 1138,1145.) Here, while plaintiff has demonstrated something in the way of procedural unconscionability (but cf. Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 1248 [failure to provide documents in Spanish dis not establish unconscioability without evidence that Spanish translations were requested or that they would have helped]), she has not shown substantive unconscion...

Excerpt: ... to Form Interrogatories, Set One, from Defendant Kooger Farms, LLC and Conditional Request for Sanctions in the Sum of $1,050; d) Plaintiff's Motion to Compel Further Responses to Form Interrogatories, Set One, from J. Jesus Munoz Velasco and Conditional Request for Sanctions in the Sum of $1,050 – a) – d) – MOOT as to all issues raised except whether surveillance recordings of Plaintiff are to be immediately produced to Plaintiff. As to t...

Excerpt: ...aims as well as a waiver of Civil Code section 1542. (Exhibit U to Defendant's Compendium of Evidence.) This language contained in the general release is plain on its face. Plaintiff argues that the release is invalid and unenforceable because she did not believe she was releasing and waiving all previous acts of discrimination, harassment and retaliation. She contends that there must be independent evidence, separate and apart from the release i...