Excerpt: ...on clause covering “any dispute arising from enrollment” (emphasis added) is broad enough to cover torts committed by defendant's employee during periods of instruction, which is controlled in part by the related question of whether the FAA actually applies to the substantive question of how to resolve ambiguities. See Victoria v. Superior Court (1985) 40 Cal.3d 734; Nixon v. AmeriHome Mortgage Company, LLC (2021) 67 Cal.App.5th 934; Western ...

Excerpt: ...caped a discovery referee and/or a sizable monetary sanction – would ask this Court to revisit that order. Nevertheless, Code of Civil Procedure §1008(a) requires that any motion for reconsideration be supported by an affidavit from the moving party setting forth “what new or different facts, circumstances, or law are claimed to be shown.” The motion is not properly presented as one for statutory reconsideration under Section 1008 because ...

Excerpt: ...ty of its claim to possession and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. Based on the pleadings before the Court, Plaintiff has established the probable validity of his conversion claim since the evidence suggests defendant has no intention of completing the work or returning the vehicle. Plaintiff has shown a right to immediate possession of the vehicle and...

Excerpt: ... Montenegro and for Monetary Sanctions against Frank E. Montenegro and Celia M. Montenegro, R. Dewey Wheeler, Luanne Rutherford and McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP, pursuant to CCP Section 2031.310(H); c) Plaintiffs' Motion to Compel Further Responses to and Further Production in Reponses to the First Set of Demands for Inspection and Copying from Frank E. Montenegro and for Monetary Sanctions against Frank E. Montenegro a...

Excerpt: ...for strict product liability. According to the defense, this cause of action is time‐barred and not sufficiently similar to plaintiff's viable claims to relate back. The demurrer is OVERRULED. At the pleading stage, defendant must negate relation back, and in this instance the allegations supporting the original negligence claim and the new product liability claim appear to be based on the same general set of facts, seek recovery against the sa...

Excerpt: ...sion shall issue after a noticed hearing if (1) the plaintiff has established the probable validity of its claim to possession and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. Based on the pleadings before the Court, Plaintiff has established the probable validity of his conversion claim since the evidence suggests defendant has no intention of completing the work...

Excerpt: ...ternative for reconsideration of the order granting the motion for summary judgment. The motion for relief in the alternative is DENIED. First, there is no legal nor factual basis presented for setting aside the Judgment under CCP §473, which was necessary after defendants prevailed on their summary judgment motion. Second, regarding the motion for summary judgment itself, the time to seek reconsideration of the determination on the motion has a...

Excerpt: ...on, defendant explains his ignorance about the need to tender such fees, including the defective advice he received from a third‐party legal service provider, which together qualifies for discretionary relief under Code of Civil Procedure section 473(b). See, e.g., Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 697; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1140‐ 1141. Moreover, defendant could have avoided the first appearance fee ...

Excerpt: ... and the documents of which the Court takes judicial notice – demonstrate that Defendant is entitled to summary judgment. Where a party has made a prima facie showing that it is entitled to summary judgment, it "causes a shift, and the opposing party is then subjected to a burden of production of [their] own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th...

Excerpt: ... and the April 2015 transfer of House's shares in Pollination Inc. to the corporation and (2) providing other relief in accordance with sections 3439.07 and 3439.08 and this opinion.” On the same day that plaintiff filed this motion, this Court issued a Minute Order setting a hearing for March 1, 2022, with a briefing schedule commensurate therewith, to address the second part of the Court of Appeal order. Where a reviewing court reverses a jud...

Excerpt: ...fs' causes of action for elder abuse and wrongful death do not state sufficient facts is OVERRULED. However, this Court finds that both causes of action as pled are uncertain and on that ground the Defendants' demurrer is SUSTAINED, with leave to amend. Plaintiffs have not carefully considered the scope of a survival action versus the wrongful death action, and in neither instance are the allegations contained in the complaint adequately tethered...

Excerpt: ...he evidence presented is inconclusive and amplified by conjecture. In opposition to the application, Defendant admits to receiving a hierarchy table from his son after the issuance of the injunction and before his son stopped working for Plaintiff. According to Defendant, the hierarchy chart was (1) not proprietary at all, (2) not used in any way and (3) shared for innocent reasons (Defendant's son was “boasting”). Although this hierarchy cha...

Excerpt: ...the lack thereof. However, petitioners are entitled to fees under CCP §1021.5 because they were successful in an action which has resulted in the enforcement of an important right affecting the public interest, and which conferred a significant benefit to a large class of persons. Additionally, Respondents' request to disallow fees associated with the motion to strike the prayer for attorney fees is GRANTED. Hearing on the Petitioners' motion is...

Excerpt: ...tter for “trial” on the merits. Based on the parties' pleadings, the essential dispute apparently centers around the “right” to present “live” testimony at the hearing, including the “right” to do so unique to the fourth cause of action for disgorgement. However, given the unique nature of writ proceedings, there is no “right” to present “live” testimony at any hearing the Court conducts, and a determination by this Court ...

Excerpt: ...endant has not shown clearly, positively and unmistakably from the text alone that Code of Civil Procedure section 340.1(q) and/or Government Code section 905(m) violate either the constitutional right to due process or the proscription against gifts of public funds. Defendant's general demurrers against the first and/or second causes of action for failure to state facts sufficient to state a cause of action are SUSTAINED with twenty (20) days le...

Excerpt: ... for a deposition. Defendant's request for monetary sanctions is DENIED. Though not in perfect form, plaintiffs' “Notice to Cancel and Reschedule” is the functional equivalent of a motion for an unfiled protective order, which should have caused counsel to resolve the scheduling issue rather than seeking fees and a court order. See CCP §§ 2025.420(b), 2025.450(b)(2); Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109...

Excerpt: ...her First Amended Complaint ‐ CONTINUED on the Court's own motion to January 28, 2022, at 8:30 a.m. in Department 24. a) Defendant's moving papers – including its separate statement of undisputed material facts, the declarations of Kaitlin E. Showerman and Armando Flores, the exhibits attached thereto and the documents of which the Court takes judicial notice – demonstrate that Defendant is entitled to summary judgment. Where a party has ma...

Excerpt: ...ponses, no substantial justification or unjust conditions are shown to avoid the imposition of modest sanction. This Court finds that the filing fee of $60, plus 1.5 hours of attorney time, is reasonable, for a total sanction of $750.00 – payable by plaintiffs within 10 days. Defendant to give notice. ...

Excerpt: ...e court finds consolidation is proper because plaintiff has shown the presence of “common question[s] of law or fact.” (Code Civ. Proc., § 1048, subd. (a).) Gregg v. Patrick CV‐21‐002839 is to be consolidated into this action, with CV‐19‐005163 remaining the lead case number. b) The granting of defendant Patrick's consolidation request means this case is no longer at issue, such that all discovery and related deadlines will be calcul...

Excerpt: ...aint – GRANTED. Defendant Pedro Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections to th...

Excerpt: ...ourth Causes of Action of Plaintiffs' Third Amended Complaint ‐ SUSTAINED, without leave to amend; d) Defendant Doctors Medical Center of Modesto Inc.'s Demurrer to Plaintiffs' Third Amended Complaint – SUSTAINED, WITHOUT leave to amend. (a) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (b) The Motion to Strike is MOOT in view of the Court's ruling on the demurrer, above. (c) Both causes of action subject ...

Excerpt: ...ion to Compel Responses from Defendant Valiplug, Inc. to Requests for Production; e) Plaintiff and Cross‐ Defendant Rainy Prock's Motion to Compel Responses From Defendant Valiplug, Inc. to Requests for Admission; f) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses from Defendant Darron Silva to Requests for Inspection or Production of Documents; g) Plaintiff and Cross‐Defendant Rainy Prock's Motion to Compel Responses...

Excerpt: ...omplaint – GRANTED. Defendant Candida Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Garibay is also GRANTED. The Court GRANTS Defendant's requests for judicial notice number 1 – 8 and SUSTAINS Defendant's objections...

Excerpt: ...djudication as to Each Cause of Action and/or Related Issue Asserted by Plaintiff, Arnulfo Garibay, in his First Amended Complaint – GRANTED. Defendant Orlando Torres Marquez's Motion for Summary Judgment, or in the alternative, Summary Adjudication as to Each Cause of Action and/or Related Issue Asserted By Plaintiff Maricela Cuevas Perez in Her First Amended Complaint is GRANTED, and the similar motion brought again the claims by Arnulfo Gari...

Excerpt: ...OWELL's fencing in the area of the incident are designed and maintained in such a way that it meets or exceeds the requirements set forth in the Food and Agriculture Code.” Plaintiff's expert opines that “[t]he livestock industry standard is to attach fence wires to the inside of the posts” instead of to the outside of the posts, where the expert inferred defendant's wires had been attached, but no source of authority is provided as to why ...