Excerpt: ...icting factual allegations in a challenged pleading. (Alameda County Waste Mangement Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5 th 1162.) Dismissal is mandatory unless a statutory exception applies, but such exceptions are strictly construed against the plaintiff. (Cal. Civ. Pro. 583.240; Inversiones Papaluchi S.A.S. v. Sup. Ct. (2018) 20 Cal.App.5th 1055, 1062.) In this case, Plaintiff did not exercise due diligence. This case w...

Excerpt: ...nt of the court's tentative ruling. The court may adopt, modify or reject the tentative ruling after considering the parties' oral arguments. The tentative ruling will have no legal effect unless adopted by the court. No notice of intent to appear is required. If you wish to submit on the tentative decision, you may send a telefax to Judge Borrell's secretary, Hellmi McIntyre, at 805‐477‐ 5894, stating that you submit on the tentative. A copy...

Excerpt: ...ng Code Civ. Proc. section 1005. Further, moving parties failed to comply with the safe harbor provisions and failed to timely file and serve the Motion. CCP 128.7(c)(1) describes the 21‐day safe harbor as precluding the filing of the motion until at least 21 days has passed since service of the motion. Therefore, the October 8, 2021 correspondence threatening a motion does not constitute service of the motion and did not trigger the 21‐day s...

Excerpt: ...s have sent emails back and forth, the efforts lack the sort of efforts at a good faith resolution called for by Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1439. “[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id.) Reaching the merits of the issues: Interrogatories 9‐11: These interrogatories seek the identity of employees that sought and/or received reimbursement for t...

Excerpt: ...ar to be in that exhibit. The Court notes that it is bound by Judge Sandhu's prior rulings. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4 th 368). On February 23, 2021, the Court granted the anti‐SLAPP Motion as to the conspiracy claim and, because a First Amended Cross‐Complaint had already been filed, denied the general Motion to Strike as moot. Because the facts proposed in a Second Amended Cross‐Compalint, while more detailed, essential...

Excerpt: ...rbitration clause complies with the requirements of Health and Safety Code section 1363.1. The arbitration clause binds the enrollees and their heirs to the arbitration clause as long as the arbitration clause was disseminated to enrollees and prospective enrollees. (Medeiros v. Sup. Ct. (2007) 146 Cal.App.4th 1008, 1017; Kuntz v. Kaiser Found. Hosp. (2021) 62 Cal.App.5th 1135, 277 Cal.Rptr.3d 271, 281‐282; Ruiz v. Podolosky (2010) 50 Cal.4th 8...

Excerpt: ...same as previously deposed because a PMK is not a deposition of the same person, but rather, a deposition of the non‐natural person. (Cal. Civ. Pro. 2025.230.) Regardless of how long the depositions of the individuals took, there is no time limit on a PMK deposition. (Cal. Civ. Pro. 2025.290(b)(5).) Additionally, even though the same documents were requested and produced during written discovery, they are authorized to be re‐requested under t...

Excerpt: ...similar pain for at least two years but he presented on May 27, 2018 because the pain was different and severe. (UMF #3.) Dr. Kanu performed a physical exam and ordered an ultrasound. (UMF ## 4‐6.) There was decreased but not absent vascularity and the radiologist noted it was “concerning for testicular torsion.” (UMF ##8‐9.) Dr. Kanu's report notes he considered epididymitis but his overall clinical impression was a right testicular tors...

Excerpt: ... Plaintiff wishes to continue this hearing, the Court will grant such a request. Unlike most discovery disputes, the Court cannot ignore evidence supporting privileges related to the attorney‐client relationship. The Court has received five separate exhibits under seal. The Court finds that Exhibit E is privileged as it appears responsive to attorney input. The July 24, 2018 text message chain between Cortnie Carmack, Mercedes Carter, and JB Ma...

Excerpt: ...r on May 15, 2020. (FAC at ¶¶ 6, 42.) Within one month of the purchase, it started to have “major powertrain defects” which led to a transmission replacement. (FAC at ¶¶ 8, 43.) The vehicle continued to have problems and by February 2021, it had been out of service for more than 30 days. While the First Amended Complaint also refers to a separate service and repair agreement, it alleges that these defects, replacement, and failure to repa...

Excerpt: ...ng benefits from the decedent. After the decedent suffered a stroke and was hospitalized, Defendant allegedly took property as husband and wife with a right of survivorship. (First Amended Complaint at Paragraphs 40 and 44.) Defendant allegedly caused real property in an irrevocable trust to be sold and then allegedly appropriated the funds. (First Amended Complaint at Paragraph 49.) The First Amended Complaint also alleges that Defendant benefit...

Excerpt: ...here was a settlement agreement in place and it was being completed. The current motion and sworn declaration claim that Defendant was in breach of the contract and that the $2,000 paid on June 7, 2021 – one day before the declaration – was correctly applied to the full amount due. These assertions seem to be at odds with each other. The Court anticipates asking clarifying questions and requires counsel appearing for Plaintiff to be able to a...

Excerpt: ...ity. The Court is unable to replicate Plaintiff's calculations as to the taxable amount claimed in total matching the taxable amount claimed in the individual claims. Defendant's zeal in pointing the amount unchallenged leads the Court to suspect it also could not replicate the math. In their opposition, Defendant filed a prior motion to tax costs in another case filed by Plaintiff's Counsel. The Court strikes this portion of the pleading. It may...

Excerpt: ...enter [“Emanuel”] in Turlock for a complaint of right testicular pain. (Undisputed Material Fact [“UMF”] #2.) Plaintiff reported intermittent similar pain for at least two years but he presented on May 27, 2018 because the pain was different and severe. (UMF #3.) Dr. Kanu performed a physical exam and ordered an ultrasound. (UMF ## 4‐6.) There was decreased but not absent vascularity and the radiologist noted it was “concerning for te...

Excerpt: ...tters properly pleaded as true. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) The allegations are liberally construed and taken as a whole. (Cal. Civ. Pro. §452; Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98.) The demurrer, then, tests the sufficiency of the allegations as a matter of law. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) Turning to the operative allegations, the First Amended Complaint identifies Defendant Greff as De...

Excerpt: ...ts made representative claims supporting an agency relationship after service. b) DENIED, without prejudice. The declaration has now been resubmitted with an appropriate signature block (a well‐established requirement), but the source of the underlying facts leading to belief is not provided. Complaints based on information and belief are permitted when the basis of the information and belief is clearly provided. (See Gomes v. Countrywide Home ...

Excerpt: ...opinions of counsel? 3. Does the deposition transcript of Cortnie Carmack establish whether some or all of her emails are privileged or not privileged? 4. Do lawyers review all of the items that are alleged to be prepared for the legal department? The Court may have follow‐up questions. To the extent that the privilege log and further filings do not adequately clarify the facts, the court lacks authority to order production. (See Catalina Islan...

Excerpt: ...) 162 Cal.App.4th 343, 364.) Since the existence of the verified complaint and cross‐complaint in the consolidated action is irrelevant to the demurrer to the First Amended Complaint, the Court declines to take judicial notice. The Court finds that while the First Amended Complaint alleges various medical and debilitating conditions, it fails to sufficiently allege facts that Defendant Credit Union knew or should have known of those medical or ...

Excerpt: ...to provide the contracted insurance coverage. (First Amended Cross‐Complaint [“FACC”] at ¶¶ 40, 48.) While Cross‐Complainants paid all premiums as they became due (FACC at ¶ 49), they were actually issued a “Ghost Policy,” which Cross‐Complainants define as “a term used to describe a sham insurance policy that is not backed by reserve funds as required by law.” (FACC at ¶ 39, 11:6‐7.) Cross‐Complainants allege it contrac...

Excerpt: ... Oppose Cross‐Defendants' Motion for Summary Judgment/Adjudication on the Cross‐Complaint There are several claims in the briefing as to why Plaintiff should have standing. Doctor's Medical Center of Modesto, Inc. (DMC) argues: 1. The language of the statute permits intervention of this sort generally; and 2. Plaintiff's rights will be impaired if he is not allowed to oppose the MSJ. Plaintiff does not make the statutory construction argument...

Excerpt: ...ed by the incomplete effort to meet and confer. Plaintiff is correct that this need not be dispositive, but the failure to engage in the process in a meaningful way does not comport with best practice. The Court anticipates that the parties will discuss and resolve or narrow the issues prior to any re‐filing. 2. DENIED as untimely. A party has 45 days to bring a Motion to Compel Further Responses, unless an extension has been agreed upon by the...

Excerpt: ...e extent the facts alleged in the complaint conflict with the facts contained in the exhibits attached to the complaint, the facts contained within the exhibits control. (Plastering v. Richmond Am. Homes (2007) 153 Cal.App.4th 659, 665.) The facts alleged in the First Amended Complaint do not contradict those identified in Exhibit D. For example, it is not expressly stated that the permanent structures alleged in Paragraph 19 are limited to the a...

Excerpt: ...the merits. In either case, the motion is stricken. The merits have been thoroughly discussed in prior rulings. (The Court does not address other procedural issues, including time of service issues.) The Court seriously considered – but rejected - the request for sanctions sought by Defendant. The “safe harbor” provisions of Code of Civil Procedure section 128.7 have not been met, and the Court is not eager to generate more trial-level liti...

Excerpt: ...ranted in the amount of $800 jointly and severally, to be paid within 10 days. As to the requests for production, The Court notes preliminarily that the Thompson declaration provides a substantial amount of the information the Court was seeking, and that Mr. Thompson appears qualified to provide that information. The parties should be prepared to address: 1. A description of the “time records” sought and whether there is any claimed burden to...

Excerpt: ... causes of action against Doctors Medical Center[“DMC”]: i) Medical Malpractice; and ii) EMTALA violations. DMC's Cross-Complaint alleges five causes of action: i) partial indemnity; ii) full equitable indemnity; iii) contribution; iv) declaratory relief; and v) apportionment of fault against Cross-Defendants, Dr. Paulo Murrieta and CEP America. The latter two move for summary judgment, or in the alternative, summary adjudication, on the basi...