Excerpt: ...can Arbitration Association, … or any other organization to conduct the arbitration subject to our approval.” Plaintiff contends that this sentence makes AAA one of her choices, and that 2WIN's approval is required only if she chooses an entity other than AAA. Defendant contends that the sentence gives it absolute veto power over any choice Plaintiff might make. The Court concludes that the sentence is ambiguous, and therefore should be const...

Excerpt: ...llful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.' ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994.) Plaintiff is to appear to update the court on his efforts to comply with his discovery obligations. The court grants the request for judicial notice of the complaint, minute orders dated August 23, 2018 and September 10, 2018, defendan...

Excerpt: ...eaningful interactions as to issues, such as Defendant's claims of privilege as to certain categories of documents, which might narrow the scope of the requested materials. The Court believes that with additional efforts expended in good faith, the potential exists for the parties to narrow or resolve the issues raised herein. Therefore, the matter is continued and counsel are instructed to meet and confer in person or by telephone with regard to...

Excerpt: ...does not permit him to impair or destroy the client's cause of action or defense. (Seacall Develop. Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4 th 201; Orange Empire Nat. Bank, (1968) 259 Cal.App.2d 347.) Defendant shall file her answer within 20 days. ...

Excerpt: ...fically as it concerned the discovery of electronically stored information in Defendants' HourTrack and current, cloud-based UltiPro systems. Therefore, the instant motion is DENIED as it concerns Defendants' conduct in that regard. As to the recently discovered electronically stored information contained within Defendant's former UltiPro system, the Court finds that with additional efforts expended in good faith, the potential exists for the par...

Excerpt: ... admission numbers 23, 37 and 38, especially when the court considers the definition of, “YOU,” that Plaintiff used in the discovery requests, cannot be answered with enough accuracy to justify subjecting the Souzas to cost of proof sanctions should they decline to admit an act of which they may be unaware. Similarly, form interrogatory numbers 9.1 and 9.2 ask the Souzas to respond to a multitude of allegations, over many years, involving num...

Excerpt: ...claim against Defendant Rodriguez. The Court further finds that Plaintiff's evidence indicates that Defendant has no equity in the property. Therefore, the Court is inclined to order that the undertaking requirement is waived as to Plaintiff and to require Defendant to file an undertaking in the amount of $32,420.31 as a redelivery bond. (Code Civ. Proc. §§515.010(b), 515.020.) Subject to those terms, the Court is inclined to order that the wri...

Excerpt: ...aintiff's “discovery abuses were ‘willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.' ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994.) Should the court make this order at the hearing as intended, defendant's request for issue, evidentiary and/or contempt sanctions is denied as moot. Finally, the court denies defendant's request ...

Excerpt: ...ue of material fact. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiff has failed to meet his burden in this regard. Specifically, the undisputed facts establish that the written lease agreement and subsequent amendment set forth specific terms and conditions for Plaintiff's effective exercise of the purchase option at issue, that the parties agreed thereto, and that Plaintiff failed to fulfill such terms with regard to the subject p...

Excerpt: ...r burden in this regard. Specifically, Plaintiffs have failed to demonstrate facts establishing that Defendant had actual or constructive knowledge of the alleged latent defect on the premises. Moreover, the law does not support Plaintiffs' theory that notice was imputed to Defendant in connection with alleged defects in the original design and/or construction of the premises under the circumstances in this case. (RSB Vineyards, LLC v. Orsi (2017...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ...r burden in this regard. Specifically, Plaintiffs have failed to demonstrate facts establishing that Defendant had actual or constructive knowledge of the alleged latent defect on the premises. Moreover, the law does not support Plaintiffs' theory that notice was imputed to Defendant in connection with alleged defects in the original design and/or construction of the premises under the circumstances in this case. (RSB Vineyards, LLC v. Orsi (2017...

Excerpt: ... appropriately submitted within the timeline established by the agreement, subject to the agreed modification by the parties in the interest of allowing for extended informal discussions. Respondent's argument with regard to the viability of Petitioners' underlying claim is akin to a statute of limitations defense requiring inquiry into the substantive merits of the matter. Such determination falls within the purview of the arbitrator, not the co...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... appropriately submitted within the timeline established by the agreement, subject to the agreed modification by the parties in the interest of allowing for extended informal discussions. Respondent's argument with regard to the viability of Petitioners' underlying claim is akin to a statute of limitations defense requiring inquiry into the substantive merits of the matter. Such determination falls within the purview of the arbitrator, not the co...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... motion to strike the Plaintiff's prayer for punitive damages is GRANTED, without leave to amend. Pursuant to Government Code section 818, public entities in California are immune from liability for punitive damages. Plaintiff has leave to amend the second cause of action of her Complaint as noted and her First Amended Complaint shall be filed not later than February 25, 2019, pursuant to California Rules of Court, rule 3.1320(g). ...

Excerpt: ...exas for them), the “non-refundable” costs might have been avoided. Equally, Defendant's counsel could have communicated his unavoidable conflict a few days earlier – which may have made a difference with regard to the Plaintiffs' “non-refundable” costs. The miscommunication related to the November 9, 2018, fax is immaterial to a consideration of sanctions – but just another example of the lack of effective communication between the p...

Excerpt: ...se inappropriate.” Additionally, once the Defendants' examiner identified the potential tests that he might employ, there was no requirement that he identify in advance all of the specific tests he would actually conduct, since the ultimate selection depends upon the Plaintiff's presentation of his injuries during the examination. ...

Excerpt: ...s' vision of the crosswalk – is transitory and has nothing to do with the design of the crosswalk. This is insufficient to allege a dangerous condition of public property. See e.g. Erfurt v. The State of California (1983) 141 Cal.App.3d 837. In Erfurt, Plaintiff alleged physical characteristics of the freeway in question were “dangerous” including: (1) the three-lane freeway split into a “Y,” (2) a concrete pillar that supported an over...

Excerpt: ...ement agreement. Of course, the Court has discretion to approve a reversionary settlement (one that provides that unpaid residual funds will be returned to defendant), but such settlements are difficult to evaluate for fairness. If a reversionary settlement is negotiated, the parties should articulate the reasons it is in the class' best interests and the trial court's order should address that issue. (See In re Microsoft I-V Cases (2006) 135...

Excerpt: ...ement agreement. Of course, the Court has discretion to approve a reversionary settlement (one that provides that unpaid residual funds will be returned to defendant), but such settlements are difficult to evaluate for fairness. If a reversionary settlement is negotiated, the parties should articulate the reasons it is in the class' best interests and the trial court's order should address that issue. (See In re Microsoft I-V Cases (2006) 135...

Excerpt: ...If the parties, through counsel, are unable to agree on 3 potential appointees, then each party shall separately submit 2 such recommendations. Such recommendations for potential appointees, together with a statement of each individual's qualifications, shall be submitted to the Court within 20 days. b) Defendant's Motion for Stay of Civil Proceedings – GRANTED, in part. The Court has considered the nature and extent of the competing interests ...

Excerpt: ...he trust in Santa Clara County by virtue of his June 2016 “Petition for Settlement of Final Account” filed in Case No. 1-15-PR-177570; and the fact that Ms. Webb in her capacity as the current successor co-trustee plans to continue administration of the trust in Santa Clara County Case No. 1-15-PR-177570 by preparing an additional accounting of the trust and filing it in Santa Clara County. The motion to dismiss the petition is DENIED. Additi...