Excerpt: ...INUED, on the Court's own motion . (a ) There is no dispute between the parties as to Defendant's entitlement to the re que st e d discove ry. In the absence of demonstrated justification for said presence, the Court finds that Plaintiff's Counsel is not entitled to be present for said Independent Medical Examination. ( Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Ca l.Ap p .4 t h 7 3 9 ; Vin s o n v. Su p e r io r Co u r t (...

Excerpt: ...evidence conclusively disproves each element necessary to support Plaintiffs' recovery for wrongful death and survival premised upon professional negligence - breach of duty, causation, and resultant damages, and also conclusiv ely disproves the elements of causation and resultant damages that are necessary to support Plaintiffs' recovery for either wrongful death or survival premised upon professional negligence . Further, Defendants' evidence e...

Excerpt: .... Dept . of Fin., (2022) 79 Cal. App. 5th 431,), as modified on denial of reh'g (May 31, 2022), review denied (Aug. 10, 2022) . The Court also finds that said alleged agreement, were same enforceable, is violative of the Statute of Frauds in that it relates to “An agreement for the le asing for a longe r pe riod than one ye ar, or for t he sale of re al prope rt y, or of an interest therei n.” but was not in writing. (Civ. Code § 1624; M...

Excerpt: ...tes the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons —that is, it relates to third party claims, not attorney fees incurred in a breach of contract action between the parties to the indemnity agreement itself. ( Alk i Pa rt ners, LP v. DB Fund Servs ., LLC, (2016) 4 Cal. App. 5th 574 ; Ca rr Bus. Ent erprises, Inc. v. Cit y of Chowchilla , (2008)166 Cal. App. 4th 14) . The Court fu...

Excerpt: ... 2017.010 and 2030.300 ; W illia m s v. Su p .Ct . (Ma r s h a lls o f CA, LLC) 3 Cal.5th 531, 541 Em e r s o n Ele c . Co . v. Su p .Ct . (Gra ys o n ) (1997) 16 Cal. 4th 1101; Obregon v. Sup.Ct. (Cimm's, In c . ) (1998) 67 Cal.4th 424, 434) . Regarding Defendant's claims of attorney client privilege and attorney work product the Court finds that Defendant did not provide sufficient factual in f o r m a t io n t o p e r m it a n e v a lu a t...

Excerpt: ... of Anaheim ,(1994) 25 Cal. App. 4th 11, 35,); Da rr v. Lone St a r Industries , Inc., (1979) 94 Cal. App. 3d 895, 900,) . The Court also finds that the conveyance of the dominant tenement transfers all appurtenant easements to the grantee, even though the easements are not s p e c if ic a lly m e n t io n e d in t h e d e e d . ( Moyla n v. Dyke s , (1986)181 Cal. App. 3d 561, 568). Furthermore, an appurtenant easement is a part of, and cannot b...

Excerpt: ...s, based on “what was, or should have been, known t o settlor at time questioned settlement was mad e ”, that the settlement entered by the parties was within the reasonable range of Ms. Gregg's proportional share of c o m p a r a t iv e lia b ilit y f o r p la in t if f ' s in ju r ie s b a s e d o n t h e in f o r m a t io n a v a ila b le a t the time of settlement. This finding is regardless of wheth er the settlement date was in Nove...

Excerpt: ...Cra ne v. R. R. Cra n e In v. Co rp ., (2022) 82 Cal. App. 5th 748, 298 citing Tr a h a n v. Tr a h a n , (2002) 99 Cal. App. 4th 62, 75; Go v. P a c ific He a lt h Se r vic e s , In c . (2009) 179 Cal.4th 522, 529 -532; Cot t on v. Expo Power Syst ems, Inc. (2009) 170 Cal.4th 1371, 1381- 1382) . The Court notes that the statutory buy -out procedure to avoid involuntary d is s o lu t io n o f a c o r p o r a t io n w h ic h in v o lve s t h e a p...

Excerpt: ... , § 1 2 8 1 ) . The Court finds that Plaintiff was not compelled to sign the arbitration agreement as a condition of employment and also had the option to opt out of said agreement. Therefore, the Court finds that said arbitration agreement was not a contract of adhesion. Civil Code section 1670.5; Armendariz v. Foundation Health Psychca re Services, Inc. (2000) 24 Cal.4th 83, 102 ; Pardee Construction Co. v. Superior Court (2002) 100 Cal.App.4...

Excerpt: ...unt of time investment by Counsel. ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133). The Court therefore awards Plaintiff attorney's fees of $84, 535.00 and costs of $3,336.27 . The Court also finds that regardless of Defendants' opposition to said partition, it m a y b e c o n s id e r e d a s b e n e f it in g f r o m s a id p a r t it io n . ( St ut z v. Da vis (1981), 122 Ca l.Ap p .3 d 1 ; O r i e n v . Lu t z (2017) 16 Cal.App. 5 th 957; Ri...

Excerpt: ...o have a contractual duty to defend M id -Cal Constructors Inc., from and against all claims by Super Store Industries arising out of or in connection with Commercial Specialty Inc.'s work on the property located at 2600 Spengler Way, Turlock Ca lif o r n ia , except “to the extent the claims arise out of, pertain to, or relate to the active negligence or willful misconduct of that general contractor, construction manager, or other subcontracto...

Excerpt: ... litigation privilege of Civil Code §47 and §425.16 . (Brown v. Dep't of Corr ., (2005) 132 Cal. App. 4th 520; Briggs v. Ede n Council for Hope & Opportunity (1991) 19 Cal 4 th 1106 115. The Court further finds that Plaintiffs have not demonstrated the probability that they will prevail on the merits of their alleged causes of action. The Court finds that Plaintiffs have failed to meet their burden particularly as there is no evidence that ...

Excerpt: ...ly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. (Cal.Welf. & Inst.Code § 15610.57(b), Carter v. Prime Healthcare Paradise Valley LLC, (2011), 198 Cal. App. 4th 396, as modified (Aug. 24, 2011) “Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” tha...

Excerpt: ...ing that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer." (Ca. Law and Motion Authorities S 29:5A). Furthermore, if a demurrer is sustained and the complaint is amended, no subsequent demurrer can be brought ...

Excerpt: ...y and as Plaintiff would not have an opportunity to respond to said issue, considerations of fairness require the Court to decline to consider that issue. Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 765 ; United Grand Corp. v. Malibu Hillbillies, LLC, (2019) 36 cal. App. 5th 142.) The court also notes that Defendant's request for judicial notce was not, as is required, made by a separate document listing the items for which notice is requeste...

Excerpt: ...iled a Private Attorneys General Act (PAGA) action comprised of individual and non-individual claims, an order compelling arbitration of individual claims does not strip the plaintiff of standing to litigate non-individual claims in court. (Adolph v. Uber Techs., Inc., (2023) 14 Cal. 5th 1104; Cal. Lab. Code S 2699(c)).Accordingly, the Court finds that Plaintiff herein may still maintain his non-individual claims in state court. However, in relia...

Excerpt: ... against all claims by Super Store Industries arising out of or in connec
Ÿon with Top Quality and Fireplace's work on the property located at 2600 Spengler Way, Turlock California. , except “to the extent the claims arise out of, pertain to, or relate to the ac
Ÿve negligence or willful misconduct of that general contractor, construc
Ÿon manager, or other subcontractor, or their other agents, other servants, or other independent contractors...

Excerpt: ... are also uncertain as to the moving defendants. (CCP S 430.10(e) & (f), California Rules of Court, Rule 2.112, Khoury v. Maw's of Calif, Inc. (1993) 14 Cal.4th 612, 516, (citing text); A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 cal.5th 577, 695, Williams u Beechnut Nutrition corp. (1986) 185 cal.3d 135, 139). Furthermore, due to the inconsistent allegations contained in Plaintiff's complaint, specifically, Plaintiff's allegations ...

Excerpt: ...at Defendant Kevin Ray Zanders has failed to respond to Plaintiff's properly propounded Special Interrogatories, Set One, or at all, without justification. Accordingly, Plaintiff's application is hereby granted. Defendant shall provide verified responses to the propounded discovery without objection within fourteen (14) days of the date of the Court's order. Any objections by Defendant to said discovery are hereby waived. (Code of Civ. Proc. SS 2...

Excerpt: ...es to have a contractual duty to defend Mid-Cal Constructors Inc., from and against all claims by Super Store Industries arising out of or in connec
Ÿon with A+ Innova
Ÿve Drywall Inc.'s work on the property located at 2600 Spengler Way, Turlock California, except “to the extent the claims arise out of, pertain to, or relate to the ac
Ÿve negligence or willful misconduct of that general contractor, construc
Ÿon manager, or other subcontract...

Excerpt: ...rged his burden of demonstrating that he is entitled to the requested discovery. (Code of Civ. Proc., "2017.010, 2030.290(b); (Appleton v. Superior Ct., (1988) 206 Cal. App. 3d 632; Steven M. Garber & Associates v. Eskandarjan (2007) 150 Cal.App.4th 813). Furthermore, the Court finds, in view of the upcoming motions for summary judgment filed by other Defendants herein against Plaintiff on calendar for February 2024, Plaintiff will be prejudiced ...

Excerpt: ...sed by P from American Chevrolet (GM UMF 1) and as to the lack of a new Limited Vehicle Warranty issued by Defendant accompanying said sale. (GM UMF4, UMF6 and UMF 7). (Rodriguez v. FCA US, LLC, (2022).77 cal. App. 5th 209). Accordingly, Defendant's application for summary judgment is hereby granted. Plaintiff's request for a continuance is denied on grounds that Plaintiff already possess the evidence it alleges supports its claim that a new vehi...

Excerpt: ...sexual abuse by the Perpetrators on Plaintiff which was reported to Defendant between January 1, 1997- 2001. The Court finds that Defendant has not pled sufficient facts to establish that Defendant was a mandatory reporter under Penal Code 511164-11174.3, Child Abuse and Negligent Reporting Act (CANRA), when Plaintiff allegedly made his second report of sexual abuse by William and David Shook to Defendant. Accordingly, Defendant's Demurrer to Pla...

Excerpt: ...on. (White Lighting Co. u Wolfson, (1968) 68 Cal. 2d 335, 344). The Court finds that Plaintiff's claim herein has probable validity. (Code of Civil Procedure section 481.190; Loeb and Loeb v. Beverly Glen Music, Inc. (1985) 166 cal.App.3d 1110). The Court additionally finds that an attachment may not be issued herein on grounds that Plaintiff's claim herein is not readily ascertainable, based on Plaintiff's failure to provide evidence of the hour...

Excerpt: ...on. (White Lighting Co. u Wolfson, (1968) 68 Cal. 2d 335, 344). The Court finds that Plaintiff's claim herein has probable validity. (Code of Civil Procedure section 481.190; Loeb and Loeb v. Beverly Glen Music, Inc. (1985) 166 cal.App.3d 1110). The Court additionally finds that an attachment may not be issued herein on grounds that Plaintiff's claim herein is not readily ascertainable, based on Plaintiff's failure to provide evidence of the hour...

Excerpt: .... Atlantic Richfield Co. (2001) 25 cal. 4th 826, 850). Accordingly, Defendant's motion for summary adjudication as to the lack of Defendant's liability to Plaintiff as a matter of law because Kevin Ray Zanders was not acting within the scope of his employment he engaged in tortious conduct towards Plaintiff, is hereby granted. (Aores v. AutoZone W„ Inc., (2008) 161 cal. App. 4th 373, Mary M. u City ofLos Angeles (1991) 54 cal.3d 202). The Court...

Excerpt: ...ff's Motion for Orders Compelling Responses to Requests for Admission Set One and Awarding Sanctons of $2,600.00 Against Defendants and Their Attorney of Record Michael Warda —GRANTED, unopposed. a) The Court finds that Defendant failed to timely respond to the requested discovery or at all. Accordingly, Plaintiffs unopposed motion to compel defendant to prov-de full and complete responses, without objections, to plaintiffs second set of form i...

Excerpt: ... in its previous order of 10/4/23 warned Defendant that further failure to comply with the Court's orders could result in the imposition of more stringent sanctions up to and including terminating sanction. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc., (2020), 56 Cal. App. 5th 771). Accordingly, Plaintiff's application for issue sanctions to be imposed against Defendant is hereby granted. The allegations of Plaintiffs complai...

Excerpt: ... for Admissions Set No. Admitted and Request for Order Awarding Monetary Sanctions Against Defendant— GRANTED, unopposed. a) The Court finds that Defendant failed to timely respond to the requested discovery or at all. Accordingly, Plaintiffs unopposed motion to compel defendant to prov-de full and complete responses, without objections, to Plaintiff's Request for Production of Documents, Set One, is granted pursuant to Code of Civil Procedure ...

Excerpt: ...p.4th 118). The Court finds that Plaintiff, as the prevailing buyer under Code of Civil Procedure 51794 (d), is entitled to the award of reasonable attorney's fees incurred in the prosecution of Plaintiff's Song Beverly Act Claim herein. The Court also finds that the pre-engagement activity undertaken by Plaintiff's Counsel prior to signing Plaintiff on as a client is compensable. (Hogar Dulce Hogar v. Cmty. Dev. Com. of City of Escondido, (2007)...

Excerpt: ...ffs Eliseo Rivera, by and through his guardian ad litem Elvia Rivera and Elvia Rivera's First Cause of Action for Medical Malpractice fails because the care provided to Ms. Rivera by Memorial's nursing staff met the applicable standard of care include the following: Whether Defendant's nurses operated below the appropriate standard of care in failing to obtain an estimated fetal weight (E W) upon Plaintiff's admission to Defendant's hospital. (Pl...

Excerpt: ... towards a finding of procedural unconscionability, may not by itself lead to a finding of procedural unconscionability. (Lane v. Francis Cap. Mgmt. LLC, (2014) 224 cal. App. 4th 676, citing Peng v. First Republic Bank (2013) 219 cal.App.4th 1452, 1472). The Court therefore finds, in combination with the voluntary nature of Plaintiff's signing of said arbitration agreement, and the prominent notice at the top of said arbitration agreement requiri...

Excerpt: ...ugh a fee request should generally be documented in detail, a judge may properly base a fee award on the attorney's declaration, in the absence of tme records and billing statements. (Cruz v Fusion Buffet, Inc. (2020) 57 cal.5th 221, 237; Bender v county ofLosAnge/es, (2013) 217 cal.4th at 987). The court considering an attorney's fee award may require a defendant to produce records sufficient to provide a proper basis for determining how much ti...

Excerpt: ...that Defendant's provision to Plaintiff of new admission paperwork and a new arbitration agreement for execution upon each occasion of Plaintiff's readmission to Almond Vista's facility, particularly after the 2016 arbitration agreement between the parties permits an inference that any previous arbitration agreement between the parties was accordingly revoked and or terminated. Accordingly, Plaintiff's refusal to sign the 3/14/19, 6/11/19, 2/12/2...

Excerpt: ... Court finds, upon the application of the factors listed in Tech-Bilt Inc. v Woodward-Clyde Associates, that Settling Defendants application demonstrates the good faith nature of the settlement between Plaintiffs and Settling Defendants. (Tech-Bilt Inc. v Woodward-Clyde Associates (1985) 38 Cal.3d 488, code of Civil Procedure SS 877, 877.6). The Court also finds that said settlement amount of settlement is within reasonable range of Settling Defe...

Excerpt: ...siness and Professions Code. Specifically, plaintiff has pled sufficient facts demonstrating a loss or deprivation of money or property sufficient to qualify as an injury in fact, i.e., economic injury, and that said economic injury was result of, i.e., caused by, the unfair business practice. (Cal. Bus. & Prof. Code S 17204, Prager Univ. v. Google LLC, (2022), 85 Cal. App. 5th 1022, review filed Jan. 17, 2023). Additionally, Plaintiff has allege...

Excerpt: ..., no such statement had been filed as ordered and the Court again re-issued the order to file the joint status statement and again continued the hearing to this date in order to determine compliance. (Minute Order of 10/3/23.) As of this posting, the Court's docket does not reflect that any such joint status statement has been filed and Plaintiffs moton has not been withdrawn nor has a notice of settlement been filed with the Court. Accordingly, ...

Excerpt: ...cial Interrogatories, Plaintiff's instant application is now moot. The Court declines to impose monetary sanctions on grounds that Defendant's Counsel's calendaring error constitutes substantial justification for failingto respond to said Special Interrogatories. (Code of Civ. Proc. section 2023.030 (a)). b) GRANTED. The Court finds that Defendant has substantially complied with Plaintiff's propounded discovery. Further, that Defendant's failure ...

Excerpt: ... Mann v. Pacific Greyhound Lines (1949) 92 Cal.App.2d 439, 446. Continuances should be granted sparingly and only on a proper showing of good cause. County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781. "To ensure the prompt dispositon of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain." [CRC 3.1332(a); see also CRC 3.1332(c)—...

Excerpt: ..., Defendant may reasonably be held to have exhibited a conscious disregard for the safety of others and thereby establishing the required malice element for Plaintiffs' claim for punitive damages herein. (Cal. Civ. Cade S 3294(c)(1), Kingv. U.S. Bank Nat'l Ass'n, (2020), 53 Cal. App. 5th 675, as modified on denial of reh'g (Aug. 24, 2020), Taylor v. Superior Ct., (1979) 24 Cal. 3d 890). Accordingly, Defendant's motion to strike is hereby denied...

Excerpt: ...inds that per said arbitration agreement, Plaintiff, as the party electing arbitration is entitled to choose between the American Arbitration Association (AAA), JAMS or any other reputable arbitration organization as the arbitration forum. The Court further finds that Plaintiff has elected the American Arbitration Association (AAA) as the arbitration forum for this dispute. Accordingly, Plaintiff's claims are ordered to arbitration with the Ameri...

Excerpt: ...D, in part. a) The Court finds that Defendant failed to timely respond to Plaintiff's Requests for Production, Set One, propounded by Plaintiff on August 2, 2022, and further failed to comply with the Court's order of June 15, 2023, to produce all outstanding discovery. All objections to the requested discovery are hereby waived. Code of Civ. Proc. 52031.300(a)). Defendant is hereby ordered to produce all the requested documents within fifteen (1...

Excerpt: ...appearing Councils. (Corporations Code S6020(a). This would include any debt or liability attributable to any of the constituent Councils to said merger. Furthermore, a plaintiff could sue a dissolved corporation for damage or injury caused by the corporation's predissoluton activities even though the plaintiff sustained or discovered the damage or injury after the corporation had dissolved. (Penasquitos, Inc. v. Superior Court, (1991) 53 Cal.3d ...

Excerpt: ...t was not a condition of Plaintiff's employment. The Court further finds, in combination with the voluntary nature of Plaintiff's signing of said arbitration agreement and the PAGA opt-out clause, that said arbitration agreement exhibits a low degree of procedural unconscionability. (Kinney v. United Healthcare Servs., Inc. (1999) 70 Cal. App. 4th 1322, 1329.) The Court also finds that any elements of substantive unconscionability that may exist ...

Excerpt: ...-Acute Healthcare Center of Modesto and Plaintiff Marcus Nichols. (Souza v. Westlands Water Dist., (2005) 135 Cal. App. 4th 879) The Court further finds that although a party to a contract may rescind a contract if the consent of the party rescinding was given by fraud, when the rights of others have intervened and circumstances have so far changed that rescission may not be decreed without injury to those parties and their rights, rescission wil...

Excerpt: ... December 2019, been put on inquiry, if not actual notice, of defects with her vehicle for her cause of achon for fraudulent concealment to have accrued so as to begin the tolling of the three year statute of limitations on her claim for fraudulent concealment. (Cal. Civ. Proc. Code S 338). The Court therefore finds that Plaintiff's cause of action, which was first filed on January 23, 2023, is time barred. The Court also finds that Plaintiff's c...

Excerpt: ...art, unopposed; c) Plaintiff Douglass Montgomery's Motion to Compel Responses to Request for Production of Documents, Set One from Defendant Animal Health International, Inc., and Request for Monetary Sanctions — a) The Court finds that Defendant has failed entirely to timely respond to Plaintiff's Request for Form Interrogatories, Set One, propounded on 5/8/23. Therefore, all objections to same are accordingly waived. Plaintiff is therefore en...

Excerpt: ...e that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing" l; Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108 [Evidence that a person was insured against liability for another person's injury is irrelevant to both the question of liability and the amount of damages for neglige...

Excerpt: ...to Police Report No. 90-30042, are necessary and have substantial relevance to the legitimate need of Defendant to defend this action and Plaintiff to prosecute same. (CA ST FAM JUV Rule 5.552 (d)). The court hereby issues a protective order accompanying this authorized disclosure, discovery, or access according to the terms of the parties' proposed protective order. (CA ST FAM JUV Rule 5.552 (d)(8)). b) GRANTED. A record must not be filed under ...

Excerpt: ...al Interrogatories (Set One) on 12/12/22. Defendant's Moton to Compel Plaintiff's Responses to Special Interrogatories (Set One), is hereby granted. Defendant is accordingly hereby deemed to have waived all objections to same including those based on privilege and work product. (Cal. Civ Proc. 52030.290 (a)). Plaintiff is hereby ordered to provide full, complete, and verified responses to said Special Interrogatories, (Set One) without objections...