Excerpt: ...w regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but contentions, deductions or conclusions of fact/law are not. In general, a pleading is ade...

Excerpt: ... a traditional writ of mandate under CCP §1085. Traditional mandamus is used to review adjudicatory decisions made without conducting evidentiary hearings required by law. Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4 th 117, 122‐124. It is most commonly used to compel an agency to exercise either a ministerial, or a discretionary, duty. See Keyes v. Bowen (2010) 189 Cal.App.4 th 647, 657‐ 661. An ac...

Excerpt: ...e accident. The motion to quash is DENIED, but a protective order is GRANTED limiting the reach of the subpoenas to just five years pre‐ accident. Plaintiff's request for sanctions is DENIED because the demand to limit the records to “parts of the body” impacted is not reasonable given the type of injuries claimed, and a good faith meet and confer (CCP §§ 1987.1, 1985.3, 2017.020, 2025.420(a)) should have led to some resolution without ju...

Excerpt: ...�Doe” and seeking leave to amend the pleading with that party's true name. CCP §474. Ignorance relates to either the defendant's identity (his name) or the capacity/manner in which the defendant may be responsible for the wrongdoing described in the operative pleading. McOwen v. Grossman (2007) 153 Cal.App.4 th 937, 942‐943. Ignorance as to “who” or “in what capacity” must be real, not feigned. See A.N. v. County of Los Angeles (2009...

Excerpt: ...d as follows: Delores Gates (hereinafter “decedent”) was an 88 year‐old elderly woman afflicted with dementia, and residing full‐time at defendant's senior memory care facility in Modesto since the summer of 2019. On the evening of 05/06/20, staff members applied a prescription lice treatment to decedent's scalp in the hopes of eradicating an on‐going (at recurring) lice infestation. The topical treatment was to have been rinsed out tha...

Excerpt: ...each of a mandatory duty under Govt. Code §815.6. Public employee liability is limited by statute, and 815.6 specifies that liability only attaches to public entities. Individuals are not public entities. See Govt. Code §811.2. This is further evident from Govt. Code §820.4 [public employees not liable for failing to enforce laws], §821 [public employees not liable for failing to enforce enactments], and §822.2 [public employees not liable f...

Excerpt: ...bstantial injustice. Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5 th 463, 468; Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5 th 759, 766. Thus, “an affirmative showing of good cause” is required for any such motion. See CRC 3.1332(c). Good cause generally exists where (1) parties, lawyers or essential witness are unavailable for trial “because of death, illness, or other excusable circumstances;” (2) new counsel mu...

Excerpt: ...esto. Plaintiff was a front‐seat passenger in a Chevy Silverado truck. Defendant James Adams was operating a cement mixer on behalf of do‐defendants Calaveras Materials and/or South Valley Materials, and collided into the rear of the truck plaintiff was in. This would be a garden‐variety auto accident case but for plaintiff's contention that the defendants are morally culpable beyond mere negligence because they had reason to know that Adam...

Excerpt: ...atories from Frank E. Montenegro and for Monetary Sanctions Against Frank E. Montenegro, R. Dewey Wheeler, Luanne Rutherford, and Mcnamara, Ney, Beatty, Slattery, Borges & Ambacher LLP, Pursuant to CCP, Section 2030.300; c) Plaintiffs' Motion to Compel Further Responses to First Set of Special Interrogatories from Celia M. Montenegro and for Monetary Sanctions Against Celia M. Montenegro, R. Dewey Wheeler, Luanne Rutherford, and Mcnamara, Ney, Be...

Excerpt: ...of good faith and fair dealing; Unruh; negligence; FEHA discrimination; defamation; and privacy violations. The pleading was filed ostensibly by Allan Ladd – the conservatee – and Pamela Ladd – the conservator. Before the Court this day is a defensive demurrer and motion to strike, directed at the entirety of the pleading. Although the demurrer and motion to strike were served on plaintiff(s), no proper opposition was filed. There was a “...

Excerpt: ...lish by a preponderance of the evidence that plaintiff actually signed any contract containing an arbitration agreement. See Civil Code §1633.9; Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 546; Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1065; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844. Defendant also waived the right to seek arbitration by waiting 245 days from appearing to bring the m...

Excerpt: ...ting separate lawsuits for trial, where they involve common questions of law or fact. The purpose is to enhance trial court efficiency and avoid the danger of inconsistent adjudications. As such, the power to consolidate cases pursuant to CCP §1048(a) only exists when the actions subject to consolidation are still pending. See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147‐1148; Martin–Bragg v. Moore (2013) 219 Cal.App.4th 367...

Excerpt: ...leave to file a cross‐complaint against co‐defendant Hisun Motors Corp. USA (hereinafter “Hisun”) for express contractual indemnity and declaratory relief. The motion is GRANTED. First, since L&K never filed an answer to Hisun's 06/05/20 cross‐complaint, Hisun never secured entry of default thereon, and Hisun did not dismiss its cross‐complaint until after the pending motion was filed, L&K was arguably entitled as a matter of right to...

Excerpt: ...voked to bypass state law statutory protections. Where a collective bargaining agreement contains an arbitration clause, both sides shall be imputed with an intention to arbitrate claims relating to rights provided by that agreement, but shall not be imputed with an intention to also arbitrate facially‐similar statutory claims unless the agreement includes a clear and unmistakable waiver thereof. This Court finds the decisions in Wilson‐Davis...

Excerpt: ...e at any time [between 01/21/17] and when notice to the class is sent.” Before the Court this day is the initial hearing on plaintiff's application for provisional certification of a class, preliminary approval of class settlement, and approval of a PAGA settlement. The gross settlement amount (“GSA”) is $600,000.00, which is intended to cover 1,260 employees suffering one of many wage/hour violations. The hearing is CONTINUED to address/re...

Excerpt: ...d a motion to strike directed at the prayer for punitive damages. The demurrer is SUSTAINED with 30 days leave to amend. The motion to strike is MOOT. The suggestion for a stay of the action pending the Supreme Court's review in Rattagan v. Uber Technologies, 19 F.4 th 1188 (9 th Cir. 2021) is premature. To begin, while the parties seem to agree that the principal issue to address on the demurrer is the economic loss rule, it is not quite so simp...

Excerpt: ...r, in pro per. On 03/12/21, plaintiff caused to be served upon defendant at his address of record Request for Admissions 1‐6. Pursuant to CCP §§ 1013 and 2033.250, defendant had 35 days from the mailing to provide a verified written response. Defendant did not timely (or ever) serve responses. See Russo Decl Para 6. Pursuant to CCP §2033.280(b), the party propounding RFAs may “move for an order that the genuineness of any documents and the...

Excerpt: ...rejudice. Courts have a duty of inquiry regarding the grounds for the motion, and are not required to accept at face value vague, unsupported or uncertain representations as to reasons why an attorney wants out. Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134‐1136. Counsel has a corresponding duty to respond and to describe the general nature of the issue, within the confines of any privilege. Aceves v. Superior Court (1996...

Excerpt: ...non‐exempt employees of [Mercer Foods LLC] within the State of California between 01/04/17 and the present.” Before the Court this day is the initial hearing on plaintiff's application for provisional certification of a class, approval of the management group (class counsel, class representative, third‐party administrator), preliminary approval of settlement, and approval of a PAGA portion. The application must be continued to 04/19/22 at 8...

Excerpt: ... Court this day is a defense demurrer directing at the elder abuse cause of action in the First Amended Complaint, and a motion to strike directed at the prayers for treble damages and attorney fees. Regarding the elder abuse cause of action, to state such a claim, plaintiffs must plead with particularity facts for each of the following essential elements: (1) decedent was a dependent adult; (2) decedent was abused or neglected; (3) defendant's e...

Excerpt: ...� 2699.3(a)(1)(B), (c)(1)(B). Counsel to advise. 1. A conformed copy of the complaint “shall” be provided to the LWDA “10 days following commencement” of the action. §2699(l)(1). Counsel to explain the delay. 2. The LWDA is supposed to receive a copy of the actual proposed settlement agreement, not just notice of a settlement. Compare Safaei Decl para 25 with §2699(l)(3). 3. Regarding litigation costs, there is no paid invoice provided ...

Excerpt: ... Defendant Ciminocare dba Orangeburg Manor; Request for Sanctions – This is a personal injury action. Before the Court this day are three motions, filed by the plaintiffs, seeking an order compelling the defendants to provide further supplemental responses to Form Interrogatories (12.1, 12.6), and Document Requests (4, 8, 9). The motions are GRANTED as set forth herein. A party responding to interrogatories has an obligation to provide response...

Excerpt: ...een the parties to arbitrate the claims at issue in the operative Complaint. Although the parties did agree to arbitrate “any dispute arising from enrollment (excluding non‐ payment of tuition or fees),” the term enrollment is ambiguous. Whether it is to be interpreted against the defendant (Civil Code §1654) or still in favor of arbitration (Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 663‐668), enrollment is gen...

Excerpt: ... to either motion, and indeed has not been heard from since he DocuSigned the substitution of attorneys on 08/30/21. The motion for terminating sanctions is DENIED without prejudice. The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12. Although this Court has broad...

Excerpt: ...on were at issue in the earlier demurrer, which this Court sustained. Demurrer to the 1 st cause of action for breach of the 05/22/20 Commercial Property Purchase Agreement is sustained based entirely upon plaintiffs' concession thereto and express representation that the claim will be voluntarily dismissed. Demurrer to the 4 th cause of action for promissory fraud is sustained without leave to amend, but without prejudice to a later motion for l...