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...