Excerpt: ...onfer to resolve these motions. No CourtCall is permitted. Re: Phelps v Life Insurance Company of North America Case No.: VCU276849 Date: March 9, 2020 Time: 8:30 A.M. Dept. 1-The Honorable Melinda Reed Motion: Plaintiff Mariah Phelps' Unopposed Motion for Approval of PAGA Settlement and Release Tentative Ruling: To deny Plaintiff Mariah Phelps' Unopposed Motion for Approval of PAGA Settlement and Release without prejudice. 1. Sufficiency of Sett...

Excerpt: ...o Strike Punitive/Exemplary Allegations from Plaintiff's First Amended Complaint. Plaintiff Alexis Ocampo's first amended complaint for employment discrimination and retaliation alleges defendant Family Healthcare Network wrongfully terminated her employment on the basis of pregnancy, physical disability, and sex. As to the demurrer, defendant contends plaintiff's complaint fails to allege facts showing her termination was based on discrimination...

Excerpt: ...tion for monetary relief against defendants Old West Export Inc. (Old West) and Frances Murillo is brought under the Perishable Agricultural Commodities Act (PACA). Here, plaintiff seeks summary adjudication of its third and fourth causes of action for enforcement of statutory trust and violation of PACA against Murillo. Plaintiff contends Murillo is personally liable for Old West's debt as a matter of law under PACA. Murillo opposes the motion a...

Excerpt: ... Center) seeks summary judgment or adjudication of plaintiff Lyla Mathew's first amended complaint for employment retaliation. Dialysis Center contends plaintiff cannot establish a prima facie case for retaliation because its offer of per diem employment was based on a legitimate, non-retaliatory reason. Summary judgment is granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law...

Excerpt: ...nge plaintiff James Martino's cause of action for fraudulent inducement. Defendant's demurrer to the claim alleged in plaintiff's previous complaint was sustained with leave to amend under the economic loss rule and the holding of Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979 (Robinson). Plaintiff's present fraud claim essentially remains unchanged from the original complaint with the exception of asserting the vehicle's alleg...

Excerpt: ...tion, defendant United Health Centers of the San Joaquin Valley seeks an order for binding arbitration based upon the arbitration policy contained in its employee handbook. In opposition, plaintiff Erma Dominquez contends there is insufficient evidence to show plaintiff consented to the terms of the arbitration policy and defendant has waived the right to compel arbitration. As to consent, a party can be compelled to submit to arbitration only wh...

Excerpt: ...third motion for preliminary approval of class action settlement. Here, plaintiffs submit a supplemental brief and their counsel's declaration in response to the court's ruling of November 18, 2019, denying their second motion without prejudice. 1. Enhancement Award to Class Representative The court has re-reviewed the May 23, 2019 declarations of representative plaintiffs and now agrees with plaintiffs as to the amount of hours the representativ...

Excerpt: ...for common counts is defective because plaintiff failed to allege whether the underlying contract is written, oral, or implied as required by Civil Procedure section 430.10(g). However, the essential elements of a common count are (1) statement of indebtedness in a certain sum; (2) consideration for the indebtedness; and (3) nonpayment. When these elements are plead in the complaint, the complaint cannot be challenged by general or special demurr...

Excerpt: ... Gregory, Donald D. Gregory, Paul C. Richter, III, and Clara O. Richter's (collectively defendants) property (0.45 acres) for a highway improvement project on State Route 137 at State Route 99 in the City of Tulare. The property is leased and improved with a single building that houses a warehouse and offices. In opposition, defendants assert the taking will create a hardship by potentially causing their lessee to terminate the lease as a result ...

Excerpt: ...ion for preliminary approval of class action settlement. Here, plaintiffs submit their counsel Edwin Aiwazian's declaration in response to the court's ruling of June 17, 2019, denying their first motion without prejudice. 1. Sufficiency of Amount of Settlement ($1,300,000.00) Plaintiffs have now provided estimates of the total value of each of their claims and submitted the damages models used for their causes of action. The damages models appear...

Excerpt: ...dant Visalia Unified School District (VUSD). On demurrer, VUSD asserts plaintiff's FEHA claims are defective for failure to exhaust administrative remedies, failure to allege adequate adverse employment action, and failure to show harassment. A demurrer can only be used to challenge defects that appear on the face of the complaint or from matters properly judicially noticed. In Saxer v. Philip Morris, Inc. (1975) 54 Cal. App. 3d 7, 18, the court ...

Excerpt: ...esponse to the motion has been filed. Defendant Kaweah Delta Health Care District's (Kaweah) request for judicial notice is granted. Plaintiff Alma Tapia's complaint for malpractice and wrongful death alleges Kaweah acted negligently by failing to properly diagnose plaintiff's daughter with medical conditions, including an embolism, that caused her death. On summary judgment and adjudication, Kaweah contends plaintiff's complaint is barred becaus...

Excerpt: ...)). It may be an abuse of discretion to grant relief under Code of Civil Procedure Section 473 where there is unexplained delay of over three months before moving for relief. Huh v. Wang (2008) 158 Cal.App.4th 1406, 1421 n.4. Here, default was entered in this case on December 5, 2018, and the present motion was not filed until September 17, 2019. The six month requirement was not met. As such, the motion is untimely. Additionally, on the merits, ...

Excerpt: ...ion Settlement; and (3) Setting Hearing for Final Approval without prejudice. 1. Sufficiency of Amount of Settlement ($300,000.00) Insufficient information has been submitted as to the basis for the court to make the merits evaluation required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 129. Plaintiff needs to provide specific factual information concerning the discussions between plaintiff and counsel, time records that w...

Excerpt: ...uest for judicial notice is granted. Plaintiffs Albert V. Tayo and Mavelin E. Tayo's (collectively plaintiffs) complaint for violations of the California Homeowners' Bill of Rights seeks to prevent Bank from pursuing non-judicial foreclosure of a lien against their property. Bank's motion for judgment on the pleadings asserts all of plaintiffs' claims fail as pled. As noted by Bank, a motion for judgment on the pleadings is properly granted if th...

Excerpt: ...rchase of a new 2012 Dodge Ram vehicle in April 2013. On demurrer, defendant FCA US LLC (FCA) contends the second cause of action for breach of implied warranty is time-barred and the fourth cause of action for fraudulent inducement- concealment is precluded by the economic loss rule. The court agrees. As to breach of implied warranty, a claim accrues when the breach occurs regardless of a party's knowledge. (Com. Code § 2725(b).) The statute of...

Excerpt: ...e with reference to the public policies underlying PAGA. (O'Connor v. Uber Technols., Inc. (2016) 201 F.Supp.3d 1110, 1113.) Plaintiff claims the gross settlement amount of $270,000.00 is fair and reasonable for the 1,140 employees who worked during the PAGA period (June 18, 2017 to date of approval of settlement). But, there is no estimate of the total value of their asserted wage and hour claims and the basis for the estimate. Plaintiff needs t...

Excerpt: ...th Settlement. Proof of service in the court's file indicates notice of the motion was adequate. Defendants/Cross- Complainants Monte Vista Lindsay, LLC, Century Developers, LLC, and Highlands Diversified, Inc. (collectively Century) have filed a notice of non-receipt of opposition to the motion. No other response to the motion has been filed. Here, Century seeks (1) an order that the settlement it reached with plaintiffs and subcontractor defend...

Excerpt: ...served defendant Donaldson Company, Inc. Here, defendant seeks to quash service of process on the ground of lack of jurisdiction under Code of Civil Procedure section 418.10. In opposition, plaintiff concedes there are insufficient direct contacts for general jurisdiction. However, plaintiff argues special jurisdiction is established under Ray v. Alad Corp. (1977) 19 Cal.3d 22 (Ray) because sufficient minimum contacts are imputed to defendant bas...

Excerpt: ...ent – concealment and a prayer for punitive damages. The new claims arise out of information plaintiff allegedly recently obtained suggesting that defendant General Motors LLC fraudulently induced her to purchase a 2012 GMC Terrain by failing to disclose the 2.4-liter engine was defective even though defendant allegedly knew about the defect for years. This motion was filed approximately five months after the original complaint was filed on Feb...

Excerpt: ... pursuant to Evidence Code sections 452(d) and 453. Defendant and cross-complainant KBDB Properties, LLC's (KBDB) cross-complaint for slander of title alleges defendant Gale Kuns recorded a grant deed in 2015 in which a life estate was reserved to Kuns. KBDB further alleges reservation of the life estate “was false and without privilege or justification and caused doubt to be cast on KBDB's title to the property[.]” On demurrer, Kuns contend ...

Excerpt: ...ion for declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair dealing alleges defendant Everest Indemnity Insurance Company (Everest) and other insurers owe plaintiff a defense in an underlying construction defects litigation. Preliminarily, the parties' requests for judicial notice are granted; the court's rulings on plaintiff's and Everest's objections to the evidence and declarations are stated on th...

Excerpt: ...Inc.'s action for declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair dealing alleges defendant Everest Indemnity Insurance Company (Everest) and other insurers owe plaintiff a defense in an underlying construction defects litigation. Preliminarily, the parties' requests for judicial notice are granted; the court's rulings on plaintiff's and Everest's objections to the evidence and declarations are st...

Excerpt: ... The problem is that defendant's motion is procedurally improper and fails to prove the exemption conclusively applies in this case. No motion to certify a class has been filed by plaintiff. Defendant has cited no authority for the motion to deny class certification. Defendant is precluded from seeking a demurrer or motion to strike portions of the complaint as an answer has been filed. Defendant's motion is improper as a motion for judgment on t...

Excerpt: ...nt's demurrer contends plaintiff Phillip Ocaranza's complaint for medical negligence and wrongful death is time barred under the one-year statute of limitations pursuant to Code of Civil Procedure section 340.5; fails to state a proper cause of action for wrongful death; and is uncertain as to the relief requested by plaintiff individually and as successor-in-interest. Plaintiff concedes his complaint is defective on all grounds. However, plainti...

Excerpt: ...aintiff Zurich American Insurance Company's (plaintiff) complaint alleges Sparta Insurance Company (Sparta) and others insured the general contractor, The Donald Lawrence Fulbright Company (Fulbright) for the residential development in the underlying action. Plaintiff also insured Fulbright and funded the settlement. Plaintiff ‘s complaint seeks equitable indemnity from the defendant insurance companies. Sparta requests summary judgment asserti...

Excerpt: ...lly transferred title to the property to a third party in breach of an agreement to sell to plaintiff. Plaintiff obtained judgment against the sellers in the prior action. In this case, plaintiff seeks to recover damages from other parties allegedly involved in the real estate transaction. The court has previously sustained demurrers, without leave to amend, as to three of the named defendants. The only remaining defendant, Matthew Rieder, (defen...

Excerpt: ...American Insurance Company's (Zurich) complaint against it is time-barred under the two-year limitations period provided for in Code of Civil Procedure section 339(l). TIG contends the complaint filed on September 26, 2018, was not timely because the underlying action was dismissed on August 19, 2016. In opposition, Zurich claims the limitations period began in October 2016, when it paid sums in the underlying lawsuit. A motion for judgment on th...

Excerpt: ... for fraud fails to state sufficient facts to support a cause of action against Banuelos individually. The court previously determined on demurrer plaintiff was barred by res judicata from suing Banuelos's principal, defendant DVP L.P., a limited partnership, in this action. In opposition to demurrer, plaintiff argues the allegations of the complaint are sufficient to show fraud. While that may be true as to DVP L.P., there is nothing to support ...

Excerpt: ...he basis for the court to make the merits evaluation required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 129. Plaintiffs represent the gross settlement amount of $1,300,00.00 is fair and reasonable for plaintiffs' class of 267 members. But, there is no estimate of the total value of their asserted wage and hour claims and the basis for the estimate. Plaintiffs' counsel's declaration describing a broad summary of his work ...

Excerpt: ...s not state a valid cause of action because plaintiff failed to obtain an order permitting a claim for conspiracy against defendant as required by Civil Code section 1714.10. In opposition, plaintiff argues the order is not required because a cause of action for conspiracy is not alleged, the elements of conspiracy are not set forth in the pleadings, and plaintiff does not seek damages for conspiracy. In Cortese v. Sherwood (2018) 26 Cal.App.5th ...

Excerpt: ...t is time-barred under the three-year limitations period for claims based on mistake pursuant to Code of Civil Procedure section 338. In particular, defendant contends plaintiffs' complaint filed on February 28, 2019, was not timely because plaintiffs were given notice of defendant's claim against them when they served with defendant's unlawful detainer action on February 27, 2016. In opposition, plaintiffs contend the limitations period began in...

Excerpt: ...effery Burch Parlier, Co-Trustees of the Jeffery Burch Parlier and Deborah June Parlier 2007 Living Trust, Gregory Paul Westerling, and Cynthia A. Graves's (collectively plaintiffs) complaint for breach of the parties' real-estate sale contract asserts the complaint fails to state adequate causes of action. In particular, defendant argues plaintiffs have failed to show he breached the contract under the express terms of the parties' agreement. Fo...

Excerpt: ...nsel Tentative Rulings: (1) To overrule Defendants Chicago Title Company and Bertha Juarez's Demurrer to Plaintiff's Second Amended Complaint; (2) to grant Defendant Chicago Title Company's Motion to Strike Plaintiff's Second Amended Complaint as to Punitive Damages Allegations without leave to amend and to overrule Bertha Juarez's Motion to Strike Plaintiff's Second Amended Complaint as to Punitive Damages Allegations; and (3) to grant Plaintiff...

Excerpt: ...Motion for Preliminary Approval of Class Action Settlement, Conditional Certification of Settlement Class, Approval of Class Notice Package, Approval of Plaintiff's Payment, Appointment of Class Counsel and Settlement Administrator, and Setting of Final Approval Hearing. On March 25, 2019, the court denied plaintiff Rosalio Vera's original motion for approval without prejudice. 1. Sufficiency of Amount of Settlement ($420,000) Upon further review...

Excerpt: ...p proceeding wherein Petitioner Oscar Estrada is seeking to obtain custody of his step-children Christopher Selix and Alexia Marie Selix after the death of their mother. He is opposed by the children's maternal grandparents, Oralia and Silvino Selix. They have subpoenaed employment records from a former employer of Mr. Estrada, Cardboard Box Company. He moves to quash the subpoena for employment records arguing the requests are overbroad and viol...

Excerpt: ...the file indicates notice of the demurrer was adequate. No response to the demurrer has been filed. Defendant Nick Pritchett contends plaintiff Mane Arax's first amended complaint for fraud fails to state a cause of action because plaintiff failed to obtain an order permitting a cause of action for conspiracy against Pritchett as required by Civil Code section 1714.10. Here, the amended complaint alleges Pritchett and his and co-defendants, “jo...

Excerpt: ...nia Insurance Company, and Applied Risk Services, Inc.'s Demurrer to Plaintiff's Amended Complaint. Plaintiff Picar Farm Labor, Inc.'s amended complaint alleges defendants Applied Underwriters, Inc., Applied Underwriters Captive Risk Assurance Company, Inc., California Insurance Company, and Applied Risk Services, Inc. (collectively defendants) fraudulently induced plaintiff to sign the parties' settlement agreement and included charges in defend...

Excerpt: ...ly, motion to strike contends plaintiff Roberto Tellez cannot recover premium pay pursuant to Labor Code section 226.7 as part of his cause of action under California's Unfair Competition Law (UCL). This case has been pending for over three years; the original complaint was filed in March 2016. The second amended complaint was filed more than a year ago and parties reached a stipulation on defendant's request to strike portions of the UCL cause o...

Excerpt: ...pproval of Class Action Settlement, Conditional Certification of Settlement Class, Approval of Class Notice Package, Approval of Plaintiff's Payment, Appointment of Class Counsel and Settlement Administrator, and Setting of Final Approval Hearing. 1. Sufficiency of Amount of Settlement ($420,000) Insufficient information has been submitted as to the basis for the court to make the merits evaluation required by Kullar v. Foot Locker Retail, Inc. (...

Excerpt: ...d (2) to grant Defendants Chicago Title Company and Bertha Juarez's Motion to Strike Plaintiff's Complaint as to Punitive Damages Allegations with leave to amend. Proof of service in the file indicates notice of the demurrer and motion to strike was adequate. No opposition to the demurrer or motion to strike has been filed. Plaintiff Jonathan Ledesma's complaint against defendant escrow holder Chicago Title Company and defendant escrow agent Bert...

Excerpt: ...ns of the Third Amended Complaint (Erroneously Entitled “Second” Amended Complaint); (5) Defendant Jose Romo's Demurrer to the Revised Third Amended Complaint; and (6) Defendant Jose Romo's Motion to Strike Portions of the Revised Third Amended Complaint Tentative Rulings: (1) To sustain Defendants Allstate Insurance Company and Joe Mabee's Demurrer to Third Amended Complaint without leave to amend; (2) to grant Defendants Allstate Insurance ...

Excerpt: ...or Summary Adjudication, in part Defendants Domingo Sustaita, Villa Park Trucking, Inc., and Young's Commercial Transfer, Inc. (collectively defendants) seek summary judgment of decedent Bonifaco Magana's heirs' (collectively plaintiffs) complaint on grounds that Sustaita allegedly did not breach a duty of care to decedent or plaintiffs. Alternatively, defendants request summary adjudication of plaintiffs' claims for negligent entrustment, hiring...

Excerpt: ...surance Company, and Applied Risk Services, Inc.'s Demurrer to Plaintiff's Complaint with leave to amend as to the first cause of action for fraudulent inducement and without leave to amend as to the second cause of action for tortious breach of the implied covenant of good faith and fair dealing. Plaintiff Picar Farm Labor, Inc.'s complaint alleges defendants Applied Underwriters, Inc., Applied Underwriters Captive Risk Assurance Company, Inc., ...

Excerpt: ...ed. Defendants seek to amend their answer to add an affirmative defense of offset for amounts they claim are due and owing for legal services provided to plaintiffs Michael P. Owens and Melanie D. Owens (collectively plaintiffs.) Plaintiffs claim the amendment should be denied as untimely and prejudicial. Courts are bound to apply a policy of great liberality in permitting amendments to pleadings “at any time stage of the proceedings up to and ...

Excerpt: ... Civil Procedure section 1255.410, plaintiff has sufficiently shown it is entitled to take the subject property by eminent domain and has deposited the statutorily determined amount of compensation. Plaintiff has also shown an urgent need for the property within the meaning of section 1255.410(c) and that it is entitled to an order for possession based on lack of timely opposition to the motion under section 1255.410(d). Accordingly, for good cau...

Excerpt: ...rvenor Nolberto Apodaca brings this motion under Code of Civil Procedure section 387(d)(1)(A) and, alternatively under section 387(a) as an employee having the unconditional right to intervene in his employer's workers' compensation insurer's subrogation action under Labor Code section 3853. Apodaca has sufficiently shown he is entitled to intervene under the circumstances of this case and that his application is timely filed. Accordingly, the ap...

Excerpt: ... the motion has been filed with the court. Here, cross-defendant David E. Godfrey dba HCD Construction (HCD) seeks orders (1) determining the settlement it reached with defendant McMillin Homes Construction, Inc., et al. (McMillin) for payment of $3000.00 by HCD's insurance carriers to McMillin in exchange for dismissal of this case was entered into in good faith; and (2) prohibiting other joint tortfeasors from pursing any claim for indemnity ag...

Excerpt: ...clusive jurisdiction over this matter. Plaintiffs assert their claims for breach of express contract are not, as a matter of law, unfair labor practices under Government Code sections 3500 et seq. and subject to PERB jurisdiction. The court agrees. PERB has exclusive jurisdiction over disputes which “arguably” constitute unfair labor practice claims. (Personnel Com. V. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 885-886.) However,...

Excerpt: ...iff Reyna Wilkinson's requests for judicial notice are granted. Plaintiff's first amended complaint for malpractice against her former lawyer and law firm alleges defendants improperly failed to file a lawsuit against Thomas C. Brodersen, the attorney for the personal representative of plaintiff's mother's estate; left her case in an “impaired condition” causing her to settle for an inadequate amount when represented by successor counsel; and...

Excerpt: ...of petitioner's driving privilege is to be reviewed by the court under the independent judgment standard. (Dyer v. DMV (2008) 163 Cal.App.4th 161, 167.) Under this standard, the court reviews the administrative record, reweighs the evidence (San Dieguito Union High Sch. Dist. v. Commission on Prof. Competence (1985) 174 Cal.App.3d 1176), and determines whether the findings are supported by the weight of the evidence. (Code of Civil Procedure sect...

Excerpt: ...icial notice is granted. Here, defendants Jasmina Anabo Uson and Daniel Walter Johnson (collectively defendants) allege plaintiff's complaint for declaratory relief is defective because the first cause of action for endorsement of settlement checks is moot and the second cause of action for right to be paid attorney's fees is void as a matter of law. A general demurrer to a cause of action for declaratory relief must be overruled as long as an ac...

Excerpt: ...vil Procedure section 473(d). Plaintiff requests the order because it “can no longer pursue collection of the debt against the Defendant.” Code of Civil Procedure section 473(d) authorizes the court to correct clerical mistakes in a judgment and, after notice, to set aside any void judgment. Here, there is no proof of notice to defendant. Moreover, the court has no authority to grant the motion under section 473(d) based on the reason stated....

Excerpt: ...tion 435.5(a) requiring defendant to meet and confer with plaintiff prior to filing the motion to strike. Accordingly, the motion to strike is ordered off-calendar. The parties are directed to meet and confer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike before re-scheduling the motion. If no one requests oral argument, under Code of Civil Procedure sectio...

Excerpt: ...iffs In Intervention Travelers Property Casualty Company of America, The Travelers Indemnity Company of Connecticut, St. Paul Mercury Insurance Company, St. Paul Surplus Lines Insurance Company, and Fidelity and Guaranty Insurance Underwriters, Inc.'s Motion to Bifurcate. Proof of service in the court's file indicates notice of the motion was adequate. Plaintiffs in Intervention have filed a notice of non-opposition by any party to the motion. No...

Excerpt: ... without prejudice. This wage and hour class action relates to 105 or 104 employees of defendants Joe Vander Poel and Ron Vander Poel. (Plaintiff needs to clarify the exact number of members; page 4 of attorney Karasik's declaration states the number is 104.) At mediation, the parties entered into a settlement agreement for a gross settlement amount of $150,000.00 to be paid in three installments over 12 months. Plaintiffs have provided their est...

Excerpt: ...) demurrer for failure to show they owed her a duty of care for injuries she received from their tenant's dog. On demurrer to the first amended complaint the court determined “[u]nder California law, a landlord does not owe a duty of care to others for injuries incurred from a tenant's dog unless the landlord had actual knowledge of the presence of the dangerous animal. Constructive knowledge is insufficient. (Uccello v. Laudenslayer (1975) 44 ...