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: ...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: ... 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: ...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: ...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: ...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...