Excerpt: ... part and DENIED in part. The Court DENIES Defendants' motion to the extent it requests “correction” of the arbitrator's award and GRANTS Defendants' motion in all other respects confirming the arbitrator's Final Award as follows: Arbitral finality is a core component of the parties' agreements to submit to arbitration. As a result, this Court is generally powerless to review the arbitration awards for errors of fact or law, even when those e...

Excerpt: ...selection clauses, such as the one at issue here (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496 (Smith)). Rather, forum selection clauses are generally enforced “in the absence of a showing that enforcement of such a clause would be unreasonable.” (Ibid..) “Although [plaintiff] relies upon the factors of inconvenience and expense of a[n Illinois] forum, both [plaintiff] and [defendants] reasonably can be held to...

Excerpt: ...his action. This court therefore accepts the guidance from the Court of Appeal that the previous award appeared to include fees that were noncompensable, and this court accepts counsel's calculation that 20 percent of the time in this case was devoted to the claims that were determined to be noncompensable on appeal. This court thereby reduces the previous award by 20 percent and awards to the City of Patterson attorney fees in the amount of $538...

Excerpt: ... MD, Erik Lacy MD, Rex Adamson MD, Ricky Bassi MD, Rohini MD, Marney Fern, Cheryl Harless, Harvey Palitz MD, John Pfeffer MD, & Randy Winter MD's Demurrer to Complaint – SUSTAINED, with leave to amend; c) Defendant Hospitalists of Modesto Medical Group, Inc., Arun Manoharan, MD, Swapna Kamireddy, MD, Li Huange, MD, Otashe Nyoku Golden, MD, Vicoria Yehm MD, Qazi Muzaffar Mohsin MD, Patrick Wong DO, Natalie J Slowik MD, and Yan Li, MD's Motion to...

Excerpt: ...ty plans. See, e.g., Peterson v. Bank of America Corp. (2014) 232 Cal.App.4th 238, 255 [suit by hundreds of customers borrowing money from Countrywide “easily a complex case” given the number of parties and volume of documents]; Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 835 n.8 [“the coordinated actions with which we are here concerned are ‘complex' within the meaning of this rule only because of the large number of repr...

Excerpt: ...arez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 643.) On this motion, plaintiff therefore has the burden of showing that an exception to Privette applies. (Ibid.) Gonzalez v. Mathis (2021) 12 Cal.5th 29 (Gonzalez), on which this court requested supplemental briefing, held that there are only two exceptions to Privette such that, according to the Gonzalez court “a hirer may be liable when it retains control over any part o...

Excerpt: ...stments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380.) The SAC and its attachments show that there was a section 1031 contingency in favor of the demurring defendants, and the SAC does not plead that this condition was satisfied, such that the SAC fails to plead that the demurring defendants ever acquired a duty to perform. The court therefore SUSTAINS the demurrer to the first cause of act. It appears plaintiff's complaints about t...

Excerpt: ...lays in this case (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939–940 [“The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.”]), and that prejudice to defendants would likely occur if the amendment were allowed. (See, e.g., Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176 [“[i]It would be p...

Excerpt: ...lisilda. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 [“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense.”].) As plaintiffs failed to show that Felisilda is meaningfully different from this case, the court finds it must grant the pe...

Excerpt: ...v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in...

Excerpt: ...posed second amended complaint (SAC) is insufficiently specific and therefore allows plaintiff to file the SAC. (See, e.g., Tarmann v. State Farm Mutual Auto. Insurance Co. (1991) 2 Cal.App.4th 153, 158 [ the “requirement of specificity is relaxed when the allegations indicate that ‘the defendant must necessarily possess full information concerning the facts of the controversy' [citation] or ‘when the facts lie more in the knowledge of the ...

Excerpt: ...ourts may consider the consequences which might flow from a particular interpretation and must construe the statute with a view to promoting rather than defeating its general purpose and the policy behind it.” ' ” (Pacific Merchant Shipping Association v. Newsom (2021) 67 Cal.App.5th 711, * 7.) ‘“ ‘The purpose of [Code of Civil procedure section 1030 (section 1030)] is to enable a California resident sued by an out-of-state resident “...

Excerpt: ...016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corp...

Excerpt: ...), and neither party appears to object to this approach. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) Plaintiff's meet and confer efforts on this motion were adequate because counsel says he called to obtain alternate deposition dates. (Code Civ. Proc., § 2025.450, and subd. (b)(2).) The court grants the motion and compels the City of Ceres to produce its PMK for deposition within 30...

Excerpt: ...leadings at which they are directed, the Court is of the initial impression that the only way to streamline what remains of these complex disputes post-arbitration is to bring all of the remaining matters under one metaphorical roof in the form of a master complaint by Doan et al under the lead case 684071, with abatement via voluntarily dismissal of the other three cases as a complete merger thereof. A master complaint would relate back to the f...

Excerpt: ...ws: 1. Judge Howard Broadman (ret) is appointed as referee for all purposes related to discovery in this action. Judge Broadman's address and telephone number are as follows: 300 N. Willis Street, Visalia CA 93291 (559) 738-1800. 2. The following exceptional circumstances require this appointment: The parties' continual pursuit of numerous, time-consuming motions related to discovery issues throughout the pendency of the matter; the demonstrated ...

Excerpt: ...nicate with all necessary parties and no discussion could occur because the attorney who was contacted was on vacation. (Code Civ. Proc., § 2034.250, subd. (a).) In part because of the weakness of the meet and confer efforts and in part because of the rest of the factors discussed below, the court finds there is “good cause” to alter the expert witness designation dates set forth in Code of Civil Procedure section 2034.230, subdivision (b). ...

Excerpt: ...See, e.g., Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 [“Each element of a fraud claim must be pleaded with specificity.”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410 [elder abuse must be pled with specificity because it is a statutory cause of action.) “‘The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations...

Excerpt: ...September 2018 for purposes of Code of Civil Procedure section 761.020, subdivision (d). Because the other causes of action are valid and because plaintiff alleges the acts of which he complains were performed in conjunction with a licensed realty transaction, the court overrules the demurrer to the fourth cause of action under Business and Professions Code section 17200, as well. ...

Excerpt: ...ure to respond to discovery was “willful” (see, e.g., Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994), or that an order dismissing the complaint would not “go further than is necessary to accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613). The request for terminating sanctions is therefore DENIED. The court orders plaintiff to reimburse defendant Janelle Lynn Clowers the $300 p...

Excerpt: ...ir names removed from the CACI under the traditional mandamus statute, Code of Civil Procedure section 1085. “ 'To obtain [this type of] relief, a petitioner must demonstrate (1) no “plain, speedy, and adequate” alternative remedy exists [citation]; (2) ‘‘ ‘a clear, present ... ministerial duty on the part of the respondent' '' ; and (3) a correlative ‘ '‘clear, present and beneficial right in the petitioner to the performance of ...

Excerpt: ...to “meaningfully separate the attorney's fees incurred in litigating contractual claims from the attorney's fees incurred in litigating the inverse condemnation claim,” as required by both Carter and the court that heard defendants' appeal from the original attorney fees order. (See, e.g., (City of Patterson v. Patterson Hotel Associates (Jan. 11, 2019, No. F074038) at *7 [nonpub. opn.]).) Plaintiff has therefore failed to meet its burden on ...

Excerpt: ...t an order dismissing the complaint would not “go further than is necessary to accomplish the purpose of discovery.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613). The request for monetary sanctions is denied for noncompliance with Code of Civil Procedure section 2023.040. The notice of motion requests an amount of sanctions that is different from the amount requested in the supporting memorandum and declaration, so the declarati...

Excerpt: ...re[s] a creditor wishing to invoke the doctrine to demonstrate the absence of a plain, speedy, and adequate remedy at law would protect against reverse piercing being used to bypass legal remedies.” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 223 (Curci).) Here, plaintiff still has an unsatisfied writ of execution and has not pursued remedies such as a charging order or wage assignment order. (Cf. Curci, 14 Cal.App.5th at p. 2...

Excerpt: ...cts sufficient to show why the City of Riverbank should be held liable for alleged torts of the independent contractor it hired to collect trash. The rule regarding this kind of liability is: “a private person who hires an independent contractor can be liable for an injury to an independent contractor's employee, even when the injury is proximately caused by an act or omission of the independent contractor, provided the private hirer (1) retain...

Excerpt: ...ary judgment granted upon submission of a judgment. a) With respect to plaintiff's first and second causes of action for discrimination and the fifth for retaliation, the court will use a “burden-shifting system [that] requires the employee first establish a prima facie case of . . . discrimination [on the basis of a protected category or retaliation as authorized by law]. If the employee does so, the employer is required to offer a legitimate ...

Excerpt: ...as to Each Cause of Action and/or Related Issues Asserted by Plaintiff, Maricela Cuevas Perez, in His First Amended Complaint – CONTINUED, on the court's own motion, to October 29, 2021, at 8:30 a.m. in Department 24. The court finds it would be inappropriate to rule on a motion that could be dispositive as to plaintiff Garibay's pleading without notice to his conservator, and/or to any other person who will represent Garibay's interests in thi...

Excerpt: ...efendant Les Schwab Tire Center's Objections to Plaintiff's Requests for Production of Documents (RFPs), Set One; Request for Sanctions in the Amount of $2,860.00 from Defendant Les Schwab Tire Center and its Attorneys of Record, Vincent Castillo, Esq. and Allen Glaessner Hazelwood Werth - DENIED AS TO RFP NOS. 3, 4, 8, 17, 20, 21, GRANTED AS TO RFP Nos. 6, 10, 11, 14, 15, 16; d) Plaintiff Sandra Bunday's Motion to Compel Further Responses and to...

Excerpt: ...laintiff falsely accused defendant Silva of harassment or that she attempted to steal from her employer are subject to the ant-SLAPP statute, and the court does not see how those allegations could fall into one of the categories described by Code of Civil Procedure section 425.16, subdivision (e). The court must “disregard[]” those allegations and therefore makes no orders regarding them. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) ...

Excerpt: ...tion to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.”]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 [“We agree with the majority of courts holding that lack of diligence may be a ground for denying a request for a continuance of...

Excerpt: ...er. (See, e.g., Id. at p. 1227 [“ ‘ “[W]hether an environment is ‘hostile”' or ‘abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' “].) The court declines to consider the contentio...

Excerpt: ...tiffs' Complaint - DENIED. (a)The Court finds that the insurer defendant is entitled to enforce the appraisal provisions contained in the contract. However, the scope of the appraisal process is limited to the determination of the amount of loss incurred under the policy, and it does not encompass determination of Plaintiff's other claims at issue in this matter. (See, e.g. Appalachian Insurance Company v. Rivcom Corp. (1982) 130 Cal.App.3d 818.)...

Excerpt: ...notes that Defendant failed to submit a substantive response to the motion but only challenged the sufficiency of Plaintiff's initial meet-and-confer efforts. With regard to Form Interrogatory 7.1, the Court finds that all objections are waived due to the lack of a verified response. However, the substance of the response is sufficient. Therefore, Plaintiff is entitled to obtain Defendant's verification but no additional responsive information is...

Excerpt: ... Second Amended Complaint - SUSTAINED, with leave to amend; d) Defendants Robert Barandica, M.D., and CEP America-California's Motion for Order Striking Portions of Plaintiffs' Second Amended Complaint - DENIED, as MOOT; e) Defendants Thanh Huynh, M.D. and Hospitalists of Modesto Medical Group, Inc.'s Demurrer to the Third and Fourth Causes of Action of Plaintiffs' Second Amended Complaint - SUSTAINED, with leave to amend; f) Defendants Thanh Huy...

Excerpt: ...he motion is untimely with regard to the request to recover costs, which is governed by the provisions of Cal. Rules of Ct., rule 3.1700 et seq. (See, e.g. Sanabria v. Embrey (2001) 92 Cal.App.4 th 422.) Therefore, the motion is DENIED as to costs on that basis. Further, to the extent the motion seeks recovery of expert fees incurred by Cross-Defendants, the Court finds that the moving parties have failed to demonstrate that the contract provisio...

Excerpt: ...subject subpoena. Therefore, the Court finds that the records in question shall be produced first to Plaintiff's counsel, who will perform an initial review in order to identify the materials which meet the agreed-upon criteria for production as to time frame and body part limitations. Plaintiff's counsel shall prepare a detailed privilege log with regard to all redacted information; the privilege log shall contain sufficient factual information ...

Excerpt: ...ilizing, or disclosing any of Level-It's proprietary, confidential and/or trade secret information and/or utilizing anyone in Defendant's employment to do the same;  Performing any future contracts obtained through the use of Level-It's proprietary, confidential and/or trade secret information;  Soliciting Level-It's employees through the use of Level-It's confidential, proprietary, and/or trade secret information or through the use of inti...

Excerpt: ...onstrated sufficient meet and confer efforts with regard to the requested depositions, as Plaintiffs' evidence reveals that they are amenable to proceeding with further deposition sessions pursuant to stipulation but seek additional clarification as to the scope of such examinations. Therefore, it appears to the Court that the potential exists for the parties to resolve these issues informally if substantive meet-and-confer discussions are conduc...

Excerpt: ...ords that 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.) Therefore, the hours claimed by Plaintiff's counsel are approved as reasonable in this contest. Reasonable Hourly Rates – In its determination, the Court has considered the skill and experien...

Excerpt: ...ations as alleged in paragraph 22 of the Complaint. (Hudson Decl. Exh. A.) Therefore, defendant argues that Plaintiff and her counsel lack a good faith basis to bring the Complaint. Plaintiff, however, submits her own declaration, stating that during her hiring process she was required to undergo a criminal background check as a condition of employment. She states that Patrick Warden of Defendant's Human Resources Department presented her with a ...

Excerpt: ...e Court finds his claimed lack of custody or control of the subject documents to be disingenuous. Finally, having considered Defendant's objections based on privacy concerns and the provisions of Civ. Code §3295, the Court finds that the subject discovery appears to relate to the central issues in the case, such that the law favors disclosure in instance. (See, e.g. Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86.) Therefore, Defendant shall...

Excerpt: ...ard and Plaintiff is ordered to provide such verification within 14 days. With regard to the request for an order compelling further responses to Demand for Inspection of Documents, Set Two, the Court finds that Defendant's motion is deficient in that no separate statement was submitted as required by Code Civ. Proc. §2031.310(b) and Cal. Rules of Ct., rule 3.1345. Therefore, the motion is DENIED in that regard. Lastly, Defendant has failed to d...

Excerpt: ..., sufficiently pleads facts supporting the elements of the stated claims. b) The motion is GRANTED to the extent that the First Amended Petition purports to seek recovery of fees and costs incurred in the previous dependency and appellate matters. The Court finds no basis for concluding that it has jurisdiction to determine such matters in the instant case. Moreover, such items are not recoverable as a matter of law in connection with dependency ...

Excerpt: ...ure has already determined the confidential nature of proceedings in juvenile matters, both before the trial court and on appeal. (See, e.g. Welf. & Inst. Code §827 and Cal. Rules of Ct., rule 8.401 et seq.) Therefore, the Court finds that the adjudged confidentiality of such matters, as determined by the legislature, must be preserved in connection with the submission of such underlying documents in the context of this proceeding. The Court bel...

Excerpt: ...hat Defendant has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a).) Therefore, Plaintiffs are entitled to an order compelling Defendant to provide answers, without objection, to the subject discovery within 14 days. The Court further finds that Plaintiffs are entitled to an award of monetary sanctions in connection with Defendant's failure to respond to the subject discover...

Excerpt: ...ating specific facts supporting the claimed insufficiency of the Defendant's responses and agreement to produce documents. With regard to Request Nos. 40-44, Plaintiff failed to make a foundational showing that such discovery is reasonably likely to lead to the discovery of admissible evidence in this case. Moreover, the defense has submitted evidence demonstrating that its objections based on relevance and burden/oppression are well-taken under ...

Excerpt: ...oduce 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 their burden in this regard and have demonstrated the existence of material factual disputes. (See, at a minimum, Plaintiffs' evidence in response to UMFs 45-55.) With regard to evidentiary objections, the Court notes that Plaintiffs' objections to Defendant's moving evidence were not ...

Excerpt: ...in its contentions, and this determination may only be made upon final resolution of the competing contract claims. (Frog Creek v. Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4 th 515, 539-540.) Therefore, “a court may not award fees under Civil Code section 1717 to one party for prevailing on a complaint and another for prevailing on a cross- complaint arising under the same contract.” (Id., at 538.) ...

Excerpt: ... Motion to Strike (Code Civ. Proc. 425.16). (See, e.g. Dickinson v. Cosby (2017) 17 Cal.App.5 th 655; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4 th 1049.) The demurrer to the First Cause of Action is overruled; the Court finds that the allegations, when liberally construed, are sufficient to constitute the stated cause of action. The demurrer to the Third Cause of Action is moot, as that claim has been dismi...

Excerpt: ...ee also Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908 – “Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.”) Therefore, the motion is DENIED as to the First Cause of Action. With regard to the contract and quiet title claims, these appear to rest on the allegation that the parties entered into an oral agreement with regard to Plaintiff...