Excerpt: ...EAVE TO AMEND. Plaintiff alleges that while she was at a Kaiser facility for a medical appointment, she was sexually assaulted by Defendant Efrain Castanon, a medical assistant. Based on the allegations in the First Amended Complaint, TPMG is not vicariously liable for its employee Castanon's sexual battery as a matter of law because his actions were beyond the scope of his employment. (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital (...

Excerpt: ... Son Lee, et al. (RG19-036589) for all purposes. These four cases clearly involve common questions of law and fact. Indeed, the central issue in the third case mentioned above (Choe v. Lee), like the other three cases, is who (if anyone) is to blame for damages caused by the fire at the church. Choe's contention that he did not work on the church roof at the time of the fire is directly related to the claims that will be tried in the other three ...

Excerpt: ...1285.2(a)(4), in two ways. First, BAD argues that the arbitrators exceeded their power by awarding RGW for costs to complete "balance of 24 inch CIDH Piles", because (1) RGW had been the subcontractor listed to perform that work on Bid Item 111 and (2) Caltrans had determined on August 25, 2017 that RGW violated Public Contracts Code sections 4100 et seq. by substituting another contractor to do that work without Caltrans approval. Although Caltr...

Excerpt: ... any defendant, cross- complainant, intervenor, or cross-defendant has asserted any claims against the Owner Defendants, so that aspect of the motion is moot. In addition, the register of actions for this case does not reflect that Plaintiff filed any response whatsoever to the 42 facts in the Owner Defendants' Separate Statement. Instead, Plaintiff's opposition Separate Statement contains 25 completely new facts. Plaintiff's failure to respond t...

Excerpt: ...App.4th 763, 772.) Plaintiff's arguments about whether the agreement complied with the requirements of the Rees-Levering Automobile Sales Finance Act (Civil Code § 2981 et seq.), and whether the arbitration provision is enforceable under the Federal Magnusson Moss Warranty Act (15 USC § 2301 et seq.) appear to be misplaced, because Plaintiff has not alleged any claims under either of those statutory schemes. Rather, the only claims Plaintiff ha...

Excerpt: ...aragraph 6, that Ali would pay Kante $12,500, and Kante would have the right to an additional $14,209.41 through an assignment and lien on Ali's share of any proceeds recovered by Ali "from any and all claims against Mid-Century Insurance, State Farm Insurance, Kevin Dawson or any other entity or person concerning [Ali's] claims concerning or relating to" Ali's house located at 7757 Hanson Drive, Oakland. Kante subsequently filed two motions to e...

Excerpt: ...nstrate any delay in prosecution by Plaintiffs. Assuming arguendo that the Court has the "inherent authority" to dismiss a case for other reasons, in the absence of a motion based on established statutory procedures such as, e.g., a motion for summary judgment or demurrer, the Court declines to exercise that inherent authority in this case. Even if the Court were inclined to exercise its inherent authority to consider dismissing this case in the ...

Excerpt: ...ersonal representative of the Estate of Eugenie VanMiller, or both. If Plaintiff is asserting her negligence claim as a survival claim on behalf of the Estate of Eugenie VanMiller, Plaintiff must comply with Code of Civil Procedure section 377.32. Likewise, if she is asserting her elder abuse claims on behalf of the Estate of Eugenie VanMiller pursuant to Welfare & Institutions Code section 15657.2(d)(1), she must expressly allege that she is the...

Excerpt: ...2010) 48 Cal.4th 788, 797.) Defendant's Request for Judicial Notice demonstrates that Plaintiffs have filed three prior actions alleging some impropriety with nonjudicial foreclosure proceedings against the real property that is the subject of this action, and that those actions have all been decided adversely to Plaintiffs. (See Defendants' Request for Judicial Notice Exhibits 2, 4, 6, 10, and 20.) The Court observes, however, that Defendants di...

Excerpt: ...ce IQ LLC, "PIQ") to Quash Service of Summons and Complaint for Lack of Personal Jurisdiction is GRANTED. On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, a factual basis justifying the exercise of jurisdiction. (See ViaView Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210.) Plaintiff Performance Max Inc. ("PMI") fails to do so here. Personal jurisdiction ...

Excerpt: ...gment on the ground that the area where Plaintiff tripped constituted a trivial defect as a matter of law. The Court determines that Defendants have not carried their initial burden under Code of Civil Procedure section 437c(p)(2) of demonstrating that the defect that allegedly caused Plaintiff?s accident was trivial as a matter of law. It is well established that a walkway height differential of .75 inches or less, in the absence of any circumst...

Excerpt: ... the ongoing Cal-OSHA investigation into decedent's accident, and the stated intent of various percipient witnesses (including Donaciano Caswell, guardian ad litem for minor Plaintiffs Santiago Torres-Alvarez and Sebastian Torres-Alvarez) to assert the Fifth Amendment right against self-incrimination and refuse to testify about the accident. The interests of justice also require staying this action because Doanciano Caswell, the guardian ad litem...

Excerpt: ...agree that you will resolve all matters in dispute between you and TWG by binding arbitration, under the JAMS Employment Rules, then in effect, which are available at www.jamsadr.com or from Human Resources upon request." The claims that Plaintiff agreed to arbitrate included, but were not limited to, "violations of federal, state or local laws." Plaintiff's claims against Defendant in this action are matters in dispute between them, arising dire...

Excerpt: ...ct with Johnson or performing work under that contract. Johnson contends that, although failure to comply with § 413 does not make the parties' contract "illegal" it does make the contract unenforceable. Johnson cites no language in § 413, and no published case, that supports her position, although she does cite a 19 year old case filed in San Diego Superior Court in which a judge reached that conclusion. In the absence of any directly applicab...

Excerpt: ... Act, Penal Code sections 11225 et seq. (See Plaintiffs' Separate Statement Facts ("SSF") Nos. 25-78.) However, the Court cannot grant summary adjudication as to liability only, where issues pertaining the calculation of damages or the other relief or remedies as to which Plaintiffs may be entitled remain to be determined. (See, e.g., Department of Industrial Relations v. UI Video Stores Inc. (1997) 55 Cal.App.4th 1084, 1097.) In Plaintiffs' Seco...

Excerpt: ...ion for Intentional Infliction of Emotional Distress. Plaintiff alleges facts supporting this claim that, if true, demonstrate that BMC engaged in extreme and outrageous conduct. That conduct includes, inter alia, billing Plaintiff for services never authorized by her or performed by BMC, attempting to seize Plaintiff's boat via a mechanic's lien for services never authorized or performed, and damaging the boat in an amount exceeding $35,000 whil...

Excerpt: ..., that (1) he was a member of a protected class, (2) he was qualified for the position he sought or competently performing the position he held; (3) he suffered an adverse employment action, and (3) some circumstance suggesting a discriminatory motive. (See, e.g. Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) Assuming arguendo that Plaintiff has submitted evidence as to elements (1)-(3) of his claim, supra, he has not submitted admissi...

Excerpt: ...d Piedmont Gardens SNF. Each of the three causes of action is apparently alleged against each of the three named defendants. However, nowhere in the First Amended Complaint does Plaintiff allege what Falck did, or did not do, that led to Plaintiff suing Falck. The Court infers from the briefs filed in support of and in opposition to this demurrer that Falck operates a medical transportation services company and was involved in transporting Plaint...

Excerpt: ... Each of the three causes of action is apparently alleged against each of the three named defendants. Plaintiff's claims against the Hospital apparently arise from some unspecified action occurring on September 6, 2016, when unspecified Defendants (presumably including the Hospital) "discharged, transferred, loaded, secured, transported, monitored, unloaded and assessed" Plaintiff during his transfer from the Hospital to Piedmont Gardens. This va...

Excerpt: ...produced to Bautista's counsel until April 1, 2019. However, that document does not change the result of the Court's ruling on Bautista's prior motion for summary judgment, which was denied on November 29, 2018. It is not reasonably disputed that Bautista sold the subject property to Cindy Kwong and Tony Wong (in their capacities as Trustees of the Wong/Kwong Family Trust, collectively "Kwong") on October 23, 2015, over a year before decedent's d...

Excerpt: .... In addition, Plaintiff's entire argument (Plaintiff not having filed a memorandum of points and authorities in support of her application) appears to be based on the contention that the real property that is the subject of this action was never validly transferred to her, because the grant deed transferring title to her was not signed by the actual property owner. If the subject property was never validly transferred to Plaintiff, she has no st...

Excerpt: ...oyer. This Court has no jurisdiction over Plaintiff's claim asserted in this case. The Workers' Compensation Appeals Board has exclusive jurisdiction over any matter concerning the recovery of workers' compensation benefits. (See Labor Code section 5300(a).) Any challenge to a decision by the Workers' Compensation Appeals Board must be brought before the California Court of Appeal or the California Supreme Court. (See Labor Code section 5955 and ...

Excerpt: ...n particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense."].) Plaintiff argues that if the court permits defendants leave to amend , then the court should permit plaintiff to supplement a claim in the complaint. (Oppo filed 5/30.) CCP 473(a) permits amendments "on terms as may be just." The court is inclined to grant the motion of defendants to file ...