Excerpt: ...ity with regard to the claim of negligence herein and that there are no issues of material fact with respect thereto. (Gov. Code §§844.6, 845.6; Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4 th 1051.) Further, in the absence of any opposition, Plaintiffs have failed to offer evidence which raises a triable issue of material fact in that regard. Therefore, the motion is granted and judgment shall be entered in favo...

Excerpt: ...t. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiffs have failed to meet their burden in this regard, specifically with regard to the element of causation. Despite submission of an expert declaration, Plaintiffs have failed to demonstrate the existence of a material factual dispute as to whether Dr. Barandica's acts and/or omissions during his care and treatment of the patient constituted a substantial factor in the patient's injuri...

Excerpt: ... Based upon review of the moving and supporting papers, the Court finds that the allegations in the Complaint are insufficient to support a claim for punitive damages, and the motion is GRANTED as to such allegations and the prayer for punitive damages. However, it appears that Plaintiff may be able to assert additional facts in support of his claim in this regard. Therefore, Plaintiff shall file his First Amended Complaint within 20 days. Furthe...

Excerpt: ... is entitled to an order compelling Ms. Lebow to provide answers, without objection, to Form Interrogatories, Set One, within 30 days of service of notice of entry of the Court's order. With regard to the motion concerning Plaintiff's Request for Admissions, Set One, however, the Court finds that the subject discovery did not contain the proper caption and was not directed to Ms. Lebow as a defendant in the instant case. Therefore, the motion is ...

Excerpt: ...monstrate that the agreement is unenforceable due to unconscionability. The Court does find some measure of procedural unconscionability inherent in the mandatory nature of the agreement. However, the Court finds that any surprise claimed by Plaintiff in connection with Defendant's efforts to compel his claims to arbitration are primarily the result of his failure to read the arbitration agreement before executing the same. Such failure does not ...

Excerpt: ...) The award in Plaintiff's favor represented only unpaid rents which Defendant conceded he owed at the outset, and both parties acknowledged that Defendant's attempt at payment of the same was rejected by Plaintiff in favor of pursuing his claims herein. Therefore, the Court concludes that Plaintiff did not realize his primary litigation objective and the resulting judgment represented a mixed result of both good news and bad news for both partie...

Excerpt: ...ard to the Third and Fifth Causes of Action. The Third Cause of Action for Specific Performance fails to allege facts supporting the conclusion that Plaintiff has no adequate remedy at law. The Fifth Cause of Action for Promissory Estoppel fails on the grounds that the First Amended Complaint admits the existence of an enforceable contract. While it is presently unclear to the Court whether Plaintiff will be able to allege additional facts to cor...

Excerpt: ...eparate statement. The Court has concerns, however, with regard to the narrow scope of evidence provided in support of the motion, particularly in view of the apparent existence of controverting evidence and Defendant's failure to identify and address the same. Had Defendant properly identified such items of evidence, the Court questions whether Defendant would have been able to carry his initial burden on the above-identified issues. In any case...

Excerpt: ...ion for arbitration shall contain a declaration, under penalty of perjury, stating whether (i) the insured has a workers' compensation claim; (ii) the claim has proceeded to findings and award or settlement on all issues reasonably contemplated to be determined in that claim; and (iii) if not, what reasons amounting to good cause are grounds for the arbitration to proceed immediately. Although Claimant's motion claimed that a demand for arbitrati...

Excerpt: ...e same injury, and the same instrumentality. Therefore, Defendant's challenge to the subject causes of action on statute of limitations grounds is DENIED. With regard to the enumerated items in Defendant's notice herein, Plaintiffs concede that Items 1 and 7 set forth in Defendant's notice are erroneous and require correction. In view of that concession, the motion is GRANTED as to those items and Plaintiffs are granted 20 days leave to submit th...

Excerpt: ...– DENIED, as MOOT in view of the Court's ruling on the demurrer. 1. The Court finds that the allegations in the First Amended Cross-Complaint fail to state facts supporting the stated causes of action against the moving parties herein, Roberto Cuellar, Jr. and Robert Cuellar, Sr. Of note, while the demurrer appears to make certain arguments on behalf of the other named Cross-Defendants, moving counsel herein does not appear to represent such pa...

Excerpt: ...ated that his asserted interest is sufficiently “immediate, pecuniary, and substantial” to afford him the ability to challenge the judgment in the context of this PAGA action. (See, e.g. County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736.) (b) The Court finds that the non-party movant lacks standing to bring the instant motion. The moving party has not demonstrated authority for a non-party employee to challenge the judgment herein. Moreo...

Excerpt: ...ts for Production of Documents, Set No. Two, and request for Sanctions of $2,165 against Plaintiff Melodie Everson and her counsel of Record, Crabtree Schmidt – GRANTED. a) The moving party has demonstrated entitlement to an order compelling further responses to the subject interrogatories. The responses provided do not comply with the requirements of Code Civ. Proc. §2030.220 and 2031.320. Defendant shall provide further verified responses wi...

Excerpt: ...ng papers do not demonstrate sufficient meet and confer efforts with regard to these issues. Therefore, the matter is continued and counsel are instructed to meet and confer in person or by telephone, with regard to potential compromise on the disputed issues herein, including but not limited to the date and location for the requested deposition to proceed. If the dispute cannot be resolved by continued good faith efforts, the parties shall file ...

Excerpt: ...t forth in Request for Admissions, Set Two. Defendant's responses to the remaining requests at issue in this motion (Items 9, 10, 12, 13, and 14) do not support the requested award, as such responses did not unequivocally refuse to admit the requested information but consisted of various objections and incomplete information, the sufficiency of which were never challenged by way of the procedure set forth in Code Civ. Proc. §2033.290 et seq. (Se...

Excerpt: ...e to state the subject causes of action (Code Civ. Proc. §430.10(e).) “Oppression” and “Malice” are not recognized as independent causes of action under California law. As to the Fifth Cause of Action for Malicious Prosecution, the demurrer is sustained without leave to amend for failure to state the subject cause of action. (Code Civ. Proc. §430.10(e).) The legal elements of this claim cannot be sufficiently pleaded while the subject l...

Excerpt: ...and unopposed. With regard to Form Interrogatories, Set 2, and Request for Production, Set 2, it appears that Defendant has entirely failed to respond and all objections have been waived. (Code Civ. Proc. §§2030.290(a), 2031.300(a).) Therefore, Plaintiffs are entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. Further, the Court finds that Plaintiffs are entitled to an award ...

Excerpt: ...der vacating the trial date, none of which can be attributed to the fault of any party herein, the Court finds that the interests of justice and a balancing of the equities dictate that any pretrial deadlines that had not expired prior to the issuance of the Court's order vacating the trial date should likewise be vacated and remain open, to be calculated from the new trial date once it has been assigned. The above ruling shall not apply to the d...

Excerpt: ... Court finds that while isolated portions of the pleading may be ambiguous, the allegations are sufficient to apprise the Cross-Defendants of the conduct complained of. As to the asserted ground of misjoinder of parties (Code Civ. Proc. §430.10(d)), the Court finds that the factual allegations concerning Ms. Boer appear to be related to her position as an officer of the corporation, which is a named Cross-Defendant in the action. (b)The Court fi...

Excerpt: ...of Defendant's request, he has failed to demonstrate why such materials could not have been submitted previously with the exercise of reasonable diligence. Therefore, the renewed motion is denied. Lastly, the Court declines to exercise its equitable powers to issue a different ruling on the underlying motion, as it finds that the materials submitted herein are not persuasive in establishing extrinsic fraud or mistake in connection with the proof ...

Excerpt: ... to Code Civ. Proc. §364. Therefore, the demurrer to the First Cause of Action is OVERRULED. With regard to the Second Cause of Action, the Court finds it to be uncertain. (Code Civ. Proc. §430.10(f). To the extent that the Second Cause of Action restates Plaintiff Shabo's claim for wrongful death as a claim for “Loss of Consortium,” it involves the same primary right as that asserted in connection with the First Cause of Action and is, the...

Excerpt: ...be time-barred. However, the Court must grant leave to amend if the plaintiff demonstrates a reasonable possibility that the defect might be cured. (Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4 th 797, 810.) Here, Plaintiff's opposition has demonstrated a reasonable possibility that he may be able to state facts justifying the application of the tolling provisions of Code Civ. Proc. §352.1 and/or the delayed discovery rule to his claims in this m...

Excerpt: ... Civ. Proc. §437c(p)(2).) The Court notes that Plaintiff's response lacks admissible evidence, as it consists primarily of what purports to be testimony that is not in the form of a declaration. (Code Civ. Proc. §2015.5.) Moreover, the Court notes that Plaintiff failed to submit a response to Defendant's Separate Statement of Undisputed Facts, as is required by Code Civ. Proc. §437c and Cal. Rules of Ct., rule 3.1350. While this failure alone ...

Excerpt: ... of the stated causes of action. The Code dictates that a motion for summary adjudication may only be granted if the issue in dispute completely disposes of an entire cause of action, affirmative defense, a claim for damages or an issue of duty. As the Court reads the motion and separate statement, Defendants set forth multiple separate issues related to the element of duty as well as additional separate issues related to the elements of breach a...

Excerpt: ...only remaining cause of action at issue. Specifically, Plaintiff admits that Defendant granted all of her requests for accommodation during her employment. (UMF11-13; Plaintiff's Additional UMF 47, 54.) The additional facts argued by Plaintiff with regard to the allegedly pretextual reasons for her discharge are irrelevant to a claim under Gov. Code §12940(m). (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4 th 245.) Plaintiff's Objections to Def...