Excerpt: ...l.App.4 th 197, 201.) Defendants argue that there can be no defamation because the statements expressed an opinion about plaintiff's job performance, and was not a statement of fact. The first amended complaint alleged at ¶ 91 that the defamatory statements were understood as assertions of fact, not opinion. Case law holds that a statement that an employee is incompetent implies a knowledge of facts which leads to this conclusion, that such fact...

Excerpt: ...edge, improper legal conclusion) Defendants' objections to the declaration of plaintiff are sustained for the reasons set forth in the objections. Defendants' objections to the plaintiff deposition citations are sustained for the reasons set forth in the objections. Defendants' motion to strike the entirety of plaintiff's additional material facts is denied. Summary of facts On 11/24/21, Plaintiff filed a FAC for gender and race discrimination, w...

Excerpt: ...dge, improper legal conclusion) Defendants' objections to the declaration of plaintiff are sustained for the reasons set forth in the objections. Defendants' objections to the plaintiff deposition citations are sustained for the reasons set forth in the objections. Defendants' motion to strike the entirety of plaintiff's additional material facts is denied. Summary of facts On 11/24/21, Plaintiff filed a FAC for gender and race discrimination, wo...

Excerpt: ....App.4 th 197, 201.) Defendants argue that there can be no defamation because the statements expressed an opinion about plaintiff's job performance, and was not a statement of fact. The first amended complaint alleged at ¶ 91 that the defamatory statements were understood as assertions of fact, not opinion. Case law holds that a statement that an employee is incompetent implies a knowledge of facts which leads to this conclusion, that such facts...

Excerpt: ... true all material facts properly pleaded. (Blatty v New York Times Co (1986) 42 Cal.3d 1033, 1040.) Whether plaintiff will be able to prove the pleaded facts is irrelevant to ruling on the demurrer. (Stevens v Superior Court (1986) 180 Cal.App.3d 605, 609-10.) Accordingly, the court has disregarded all the “facts” asserted by defendants. The points and authorities in support of the demurrer consisted of four paragraphs that merely recite tha...

Excerpt: ...g & Water Purchasing, LLC and Pacific Boring, Inc., as stated more specifically below. A protective order will not issue at this time. As an initial matter, the court finds that Sandridge does not adequately establish its objections based on trade secrets or privacy, due to the failure to sufficiently identify the alleged trade secrets or proprietary information to be protected. (Code Civ. Proc. §2031.240 [requiring sufficient factual informatio...

Excerpt: ...t meal period, second meal period, rest period, late final wages, and facially deficient wage statement are also certified, together with the derivative claims. Defendants' objections to Plaintiffs' evidence presented in support—including the declarations, deposition excerpts, and employee handbook excerpts—are overruled. The supplemental compendium of evidence cures the objections related to translated declarations and electronic signatures....

Excerpt: ... prove the pleaded facts is irrelevant to ruling on the demurrer. (Stevens v Superior Court (1986) 180 Cal.App.3d 605, 609- 10.) Accordingly, the court has disregarded all the “facts” asserted by defendants. The points and authorities in support of the demurrer consisted of four paragraphs that merely recite that the terms of an alleged oral contract must set forth the essential contract terms and must allege the elements of a breach of contr...

Excerpt: ...action. As an initial matter, the FAA applies based on the express provision that the Arbitration Agreement (“Agreement”) is “made pursuant to and shall be governed by and construed in accordance with the procedures set forth in the Federal Arbitration Act[.]” (Mayorquin Decl. Exh. C, ¶4(a).) Alternatively, the FAA applies due to Defendant's involvement in interstate commerce. (Holland Decl. ¶¶4-5; Guiliano v. Inland Empire Personnel, ...

Excerpt: ...laintiff's 2023 death and this wrongful death/ survivor action was filed in its place. (Def UMF 13 [separate statement date of death listed as 5/5/23 however May 7, 2023 is the date of death in the death certificate].) Defendant contends that it cannot be held liable to plaintiffs because the alleged dangerous condition of a just mopped floor was “open and obvious” and because decedent had “full and actual notice” of the danger. In terms ...

Excerpt: ...al.App.4th 968, 994.) The city's request that the court take judicial notice of the cases related to the tank explosion in Lemoore on June 2, 2021 is denied. The court may take judicial notice of the filing of the litigation, but not the facts alleged in the litigation. (Sosinsky v Grant (1992) 6 Cal.App.4th 1548, 1551.) The city's demurrer to the cross-complaint for declaratory relief filed by Everest is overruled. The city (obligee) sued Everes...

Excerpt: ...oposed amendment, subject to certain limitations; (4) the proximity to trial; and (3) whether prejudice to the opposing party will result. (Weil & Brown, Civil Procedure Before Trial ¶¶6:638-6:653.) Motions for leave to amend the pleadings are directed to the sound discretion of the court and such discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428...

Excerpt: ...ent allegations than those contained in the initial complaint. However, upon further review of the amended pleadings, the opposition to the instant demurrer, and case law, in particular C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 (“C.A.”), the court finds the complaint adequately alleges the County's actual or constructive notice that Plaintiff was being sexually abused by the perpetrator in the foster home and faile...

Excerpt: ...e diligence or lack of diligence by the party seeking discovery, and the reasons why the discovery was not completed, (3) whether permitting the discovery or granting the discovery moton will likely prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar or prejudice any other party, and (4) the length of time elapsed between any date previously set and the date presently set for trial. (Code Civ. Proc...

Excerpt: ...ors: (1) the liberal policy favoring amendment such that denial is rarely justified; (2) the nature of the proposed amendment; (3) the validity of the proposed amendment, subject to certain limitations; (4) the proximity to trial; and (3) whether prejudice to the opposing party will result. (Weil & Brown, Civil Procedure Before Trial ¶¶6:638-6:653.) Motions for leave to amend the pleadings are directed to the sound discretion of the court and s...

Excerpt: ...t allegations than those contained in the initial complaint. However, upon further review of the amended pleadings, the opposition to the instant demurrer, and case law, in particular CA. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 ("C.A."), the court finds the complaint adequately alleges the County's actual or constructive notice that Plaintiff was being sexually abused by the perpetrator in the foster home and failed to pr...

Excerpt: ...he exception to the no-duty- to-protect rule for cases in which the defendant has a special relationship with either the dangerous third party or with the victim].) Other than the conclusory allegation that “a special relationship existed between Entity Defendants and DOE 3,” (¶¶62, 83) the complaint does not otherwise contain sufficient facts to demonstrate DOE 1 had any control over the plaintiff's welfare or that plaintiff had a right to...

Excerpt: ...der section 2031.320. According to Plaintiff, there is no dispute that Defendant was required to produce the telephone numbers, payroll records, and timecards of the putative class once the Belaire-West notice procedures were completed. (Memo. in Support at 5; Reply at 3.) The court disagrees. Defendant's July 5, 2023 responses to RFP Nos. 1 through 3, each state, in pertinent part: “Defendant further objects to this integratory [sic] because i...

Excerpt: ...vertime pay, and for which they did not receive the proper compensation under the law.” (¶97.) On demurrer, Defendant argues that the allegations do not constitute a cause of action as the pleadings set forth a legal standard with regard to minimum wage that is inconsistent with the only applicable IWC Order, No. 14-2001. (Demurrer at 2.) Defendant cites that the minimum wage stated in the Labor Code differs from the minimum wage established b...

Excerpt: ...re of the proposed amendment; (3) the validity of the proposed amendment, subject to certain limitations; (4) the proximity to trial; and (3) whether prejudice to the opposing party will result. (Weil & Brown, Civil Procedure Before Trial ¶¶6:638-6:653.) Motions for leave to amend the pleadings are directed to the sound discretion of the court and such discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard ...

Excerpt: ...nowledge. (§340.6, subd. (a) [discovers or through use of reasonable diligence should have discovered the facts constituting the wrongful act or omission].) In this case, plaintiff signed partnership amendments in 2014 that clearly informed her that, if signed, she would be required on her death to distribute her entire general partnership interests to EG Farming Trust, and that the beneficiaries of that trust were Gary Esajian's daughters. ((UM...

Excerpt: ...nt continuance of the trial date, with the apparently shared understanding that the 6-month pandemic extension results in an extended date of May 13, 2024. (See Defendant's May 16, 2023 Ex Parte Application to Continue; Declaration of Ron Torem in Support, filed May 17, 2023.) The court denies Defendant's request to continue the trial date at this time, without prejudice to a noticed motion to continue trial or another stipulation, subject to any...

Excerpt: ...rwood letter). It is now undisputed that the only communication from December 2018 to the present is the one Sherwood letter. (UMF 11.) Nevertheless, a motion for summary judgment was the appropriate motion to file, given the allegations in the complaint. The court finds that a triable issue of fact exists if the Sherwood letter was in violation of 15 USC §1692c and §1692e. The declaration of plaintiff notes that his letter refusing to pay the ...

Excerpt: ... any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the ...

Excerpt: ... Inc (Hereafter CVM Holding) ( a party to this lawsuit), the deponent admitted that he searched for insurance policies for CVM Holding and found one excess policy but believes there is another policy. He is attempting to retrieve a copy of this excess policy from the insurance broker. (Decl Beecher Ex 3 page 20-21 ecourt page 329 et seq) The opposition did not address this document request. Absent assurances the document will be provided, the mot...

Excerpt: ...the motion, i.e., to obtain an IME of Plaintiff, issue subpoenas and obtain documents, conduct depositions of treating physicians, and conduct expert discovery. On motion of any party the court may reopen discovery after trial has been continued to a new date, so long as the court considers any relevant matter, including (1) the necessity and reasons for the additional discovery sought, (2) the diligence or lack of diligence by the party seeking ...

Excerpt: ...2031.240.) Defendant specified the documents they would produce while at the same time asserting objections based on burden, relevance, trade secret, and attorney client privilege. GM agreed to “comply” in part “subject to and without waiving any objections.” A further response is required that specifies the documents to which objection is made and if the objection is based on privilege, provide a privilege log. (CCP §2031.240 (c )(1).) ...

Excerpt: ...o. Inc (CVM)'s objections were served by email on 2/22/23. This motion was not filed until 8/11/23. Plaintiff relies on Code of Civil Procedure section 2025.410 in arguing that CVM's objections were not timely asserted because they were made two days, not three days before the production date of 2/24/23. Plaintiff argues that CVM's objections have been waived. However, CCP §2025.410 relates to objections to a deposition notice by a party to the ...

Excerpt: ... L.P. (2000) 83 Cal.App.4th 74, 117- 123; Western States Petroleum Ass'n v. Superior Court (1995) 9 Cal.4th 559, 570-576.) Moreover, TLCC has failed to establish the relevancy of the evidence sought, namely, the deposition testimony of John Vidovich as to his knowledge regarding the Pipeline Project. As the Fifth District held in its opinion reversing the court's order denying the preliminary injunction, and which is therefore now the law of the ...

Excerpt: ... with reckless disregard for the probability that plaintiff would suffer emotional distress, knowing that plaintiff was present when the conduct occurred, (3) plaintiff suffered severe emotional distress, and (4) defendant's conduct was a substantial factor in causing plaintiff's severe emotional distress. (CACI 1600; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) A defendant a...

Excerpt: ...ious tentative ruling on the motion, Defendant GM has not demonstrated a valid objection to these requests. GM's arguments in its supplemental declaration filed August 21, 2023 do not address the information sought by RFP Nos. 37-41 and thus GM has presented no authority in opposition to the courts tentative ruling as to these requests. Because GM has not demonstrated a valid objection based on burden, overbreadth, irrelevance, trade secret, or o...

Excerpt: ...ising from the jailor-inmate relationship. (Goc Code §815.2 [liability for acts of employees], 15 CCR §3004 [rights and respect of others and Giraldo v CDCR (2008) 168 Cal.App.4 th 231, 248. ) The second cause of action did not specifically allege medical malpractice, although allegations suggesting the same were alleged. (FAC ¶21 [knew or should have known plaintiff was a suicide risk], ¶ 22[failure to place plaintiff in a custodial environm...

Excerpt: ...ection then discusses an exception where the lease defines late charges as “additional rent.” The landlord relies on these cases due to a provision in the subject lease that does define the $15 late charge as additional rent. However, a review of the cases reveal that a commercial/ business lease was at issue. Notice of rent due in commercial leases is governed by Code of Civil Procedure section 1161.1, which allows estimates of rent due in t...

Excerpt: ...set forth in Civil Code section 1793.22(e)(2) does not include a used car purchased from a retail seller simply because there is some balance remaining on the manufacturer's warranty. Here, the parties do not appear to dispute that the vehicle was previously owned at the time of sale with 11,521 miles on the odometer. As such, it does not fall within the definition of a “new motor vehicle” under the Song- Beverly Act. Plaintiff does not alter...

Excerpt: ...eil & Brown, Civil Procedure Before Trial § 8:2200; Pember v. Sup.Ct. (Young) (1967) 66 Cal.2d 601, 604; Sauer v. Sup.Ct. (Oak Indus., Inc.) (1987) 195 Cal.App.3d 213, 228 [trial court's choice of sanctions subject to appellate review only for abuse of discretion].) The following factors may be relevant: the time that has elapsed since the discovery was served, whether the party received extensions of time to answer or respond, the number discov...

Excerpt: ... privilege log. (CCP §2031.240.) The document requests related to : GM's policies and procedures as to how a request for repurchase or replacement of a vehicle will be deemed eligible and the customer relation procedures and practices relating to the subject vehicle [1-6]. The document requests also sought documents reflecting communications to other repair dealers relating to the same defects in the same year, make and model vehicle, as reflect...

Excerpt: ...t the party does not have a substantial interest in the case as a whole.” Plaintiff has established that she is under 14 years of age and the court declines to find that she does not have a substantial interest in the case as a whole. However, the court disagrees with Plaintiff that there are no other considerations to be made in the court's determination on the motion. “The underlying assumption behind section 36 is that the plaintiff has di...

Excerpt: ...o which the motion should be directed. Furthermore, the basis for the moton is that the "only statutory authority for an award of pre-judgment interest is Civil Code section 3287" and that such an award is only available where there is no dispute as to the basis of computation of damages. However, the First Amended Complaint prays for prejudgment interest based on Civil Code section 3291, which provides, in pertinent part: In any action brought t...

Excerpt: ...aintiff's exhibit reflects that defendant failed to send an objection in good faith under Code of Civil Procedure section 2025.410. Instead, the defendant refused to produce a PMK, refused to produce any of the documents requested and demanded that plaintiff agree to a “coordinated efficient discovery plan across all your cases.” (Ex 4 Letter date May 17, 2023.) Defendant repeated the refusal to participate in a PMK deposition in an email dat...

Excerpt: ...iate medical care], or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code [biomedical research], a public entity is not liable for: (1) An injury proximately caused by any prisoner. (2) An injury to any prisoner.].) Plaintiff's First Amended Complaint was filed on 9/27/2019. The first cause of action was for failure to summon medical care for a serious and obvious medical condition requiring immediate medical care. (Gov Code ...

Excerpt: ...sonably calculated to lead to the discovery of admissible evidence.” (CCP §2017.010.) Based on the court's most recent ruling sustaining Angiola's demurrer to the TAP with leave to amend, Angiola remains a party to the action. TLCC's theory with respect to Angiola's liability under CEQA centers on whether Angiola's previous General Manager was authorized to execute the hold harmless letter on behalf Angiola, such that the repudiation of the pr...

Excerpt: ... stored information, or tangible thing described in the deposition notice “[i]f, after service of a deposition notice, a [party-affiliated deponent] without having served a valid objection under Section 2025.410, fails to appear for examination.” [Emphasis added.] Section 2025.410(a) provides that a party may serve a written objection to a deposition notice, specifying the error or irregularity at least three calendar days prior to the date f...

Excerpt: ...ummons and complaint at a mailing address, “it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof.” Here, Defendants present evidence in the form of sworn declarations from Defendant Kaur and her son, that the summons and complaint were left with her son, who is only sixteen years of age. This is sufficient to rebut the presumption that a registered process server's declaration is true. (Evid. ...

Excerpt: ...uments produced and thus Plaintiffs are unable to determine whether they are responsive to the subject requests. Under Code of Civil Procedure section 2031.280, subdivision ' '[a]ny documents _ _ _ produced in response to a demand for inspection _ _ _ shall be identified with the specific request number to which the documents respond." GM does not appear to contest Plaintiffs assertions and instead asserts it has already produced, pursuant to the...

Excerpt: ... stored information, or tangible thing described in the deposition notice ' '[i]f, after service of a deposition notice, a [party-affiliated deponent] without having served a vaitd objection under Section 2025.410, fails to appear for examination." Under the Code, a party may serve a written objection to a deposition notice, specifying the error or irregularity at least three calendar days prior to the date for which the deposition is scheduled. ...

Excerpt: ...on Angiola_ (CaL Pub. Resources 521065; Cal. Code Regs. , tit. 14, 515378, subd_ (a)_) The TAP alleges that Angiola "has engaged in sustained, direct support of and assistance to the Project, including, without limitation, the offer to Petitioner of complete indemnity, as clearly expressecl in [the hold harmless letter signed by former Angiola General Manager Mark Grewal]." (144.) However, the TAP recognizes, as did the prior iterations of the pe...

Excerpt: ... temporary restraining order evicting Defendant from the Property would not serve to preserve the status quo until a final determination of the merits could be had. (Order at 4.) The court did find, however, that the interim harm each party was likely to sustain was significant for both parties and issued the following orders, in relevant part: (1) Defendant was restrained from dumping trash/toxic waste and/or storing old tires and other items on...

Excerpt: ...he demurrer to the SAC. (801 F _ App'x 519, 521 ["[U]nder any reasonable reading of the statute, 51793.2(b) requires only that [the facility] complete any single repair attempt within 30 days."]_) Plaintiffhas made no changes from the SAC in the TAC's allegations with respect to this claim and again fails to allege a single repair facility visit lasting longer than thirty days. Instead, Plaintiff now argues that because the repair facility visits...

Excerpt: ...Civil Code section 1793.22, subdivision (e)(2), does not include a used car purchased from a retail seller unaffiliated with the manufacturer simply because there is some balance remaining on the manufacturer's warranty. To the extent Jensen can be construed as presenting conflicting authority, the court views Jensen's view in light of the particular facts surrounding the vehicle at issue in that case and the affiliation of the manufacturer with ...

Excerpt: ...lternative and cumulatively, that trenching through the canal without having first secured permits for the entire project and without having completed environmental review as required by state and local statutes [including CEQA as set forth in both California's Codes and the California Code of Regulations] is an undue burden on the easement regardless of what effect the trenching will have on Tulare Lake Canal's use of the easement and operation ...

Excerpt: ...otions are granted. Plaintiff counsel's declaration establishes that the discovery requests were properly served and that no response was timely made to those requests even after an agreement to extend the time to respond by more than six months. Additionally, no opposition has been made to the motions. Defendant Agler's and Defendant Bookwalter's verified responses without objection to the Form Interrogatories, Set One, Special Interrogatories, ...

Excerpt: ... is made as to whether the propounding party has complied with the pre-motion requirements under the Discovery Act. (Code Civ. Proc. "2016.040 [meet and confer declaration required in support of discovery motion], 2025.480 [motion to compel answers if deponent fails to answer or produce], 2030.300 [motion to compel further responses to interrogatories], 2033.290 [untimely responses to interrogatories].) Without deciding the propriety ofthese disc...

Excerpt: ...wner shall first give notice of the violation to the tenant with an opportunity to cure the violation.” (Code Civ. Pro. § 1946.2, subd. (c).) Once the violation is not cured, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy. (Ibid.) Here, the 3-day notice attached to the Complaint includes a statement that the tenants have been previously notified of an alleged breach and that the brea...

Excerpt: ...ttendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice “[i]f, after service of a deposition notice, a [party-affiliated deponent] without having served a valid objection under Section 2025.410, fails to appear for examination.” Section 2025.410(a) provides that a party may serve a written objection to a deposition notice, specifying th...

Excerpt: ...ion for judgment on the pleadings with leave to amend, a plaintiff may amend his or her complaint only as authorized by the court's order. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023; People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.) In the order, the court specifically directed Plaintiff to amend the complaint “in order to include allegations that give rise to a theory of liability for elder abuse...

Excerpt: ...d and related torts) "in ordinary and concise language," and the test for adequacy is not absolute but whether the pleading as a whole apprises the adversary of the factual basis of the claim].) The general rule is that a plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The court treats the demurrer as admitting all material facts properly pleaded, but not contentions, dedu...

Excerpt: ...2) 5 Cal.App.4th 1480, 1486.) In particular, the Complaint fails to include adequate facts with respect to the alleged disclosure to the social worker, the perpetrator's “propensity” for the conduct which caused injury to Plaintiff and the foreseeability of the abuse, as well as the nature of the social worker's visits with Plaintiff and the alleged “chronic, unmitigated, systematic, and pervasive problem” of sexual assaults and abuse of ...

Excerpt: ...der are allowed where the failure was willful. (Weil & Brown, § 8:2147; Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618-619 [“absent unusual circumstances, nonmonetary sanctions are warranted only if a party [acts] willfully”]; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605-606; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The appellate courts have agreed with trial court determinat...

Excerpt: ...is state that amendments shall be liberally allowed.” (Weil & Brown, Civil Procedure Before Trial ¶6:636; Vogel v. Thrifty Drug Co. (1954) 43 Cal.2d 184, 188; Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; California Cas. Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 278.) The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of...

Excerpt: ...determine with any certainty which responses to production remain outstanding as of the date of this ruling and whether there is any need for any further order by the court in regard to such matters. To aid in the parties' discussions, the court—with the exception of Request for Production of Documents No. 5—rejects Plaintiff's contention that Defendant Hanfordidence fails to provide the requisite statement of compliance. Except for Request f...

Excerpt: ...determine with any certainty which responses to production remain outstanding as of the date of this ruling and whether there is any need for any further order by the court in regard to such matters. To aid in the parties' discussions, the court—with the exception of Request for Production of Documents No. 5—rejects Plaintiff's contention that Defendant Hanfordidence fails to provide the requisite statement of compliance. Except for Request f...

Excerpt: ...e Trial ¶6:636; Vogel v. Thrifty Drug Co. (1954) 43 Cal.2d 184, 188; Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; California Cas. Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 278.) The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend...

Excerpt: ...er form of assistance, the FAP fails to state sufficient facts to impose CEQA-related obligations upon Angiola.” (¶12.) With respect to Angiola, the SAP alleges that Sandridge informed Petitioner that the Project was for use by Angiola. (¶8.) The SAP further alleges that Angiola board members have financial ties to John Vidovich and Sandridge and that such members have at various times communicated with Sandridge. (¶¶15, 21.) The SAP also a...

Excerpt: ...[alleged by plaintiff] more likely than not'—that is, evidence that would prevent a finding of that material fact. (Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 242 [quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851].) The moving party must satisfy this initial burden before the opposing party must controvert anything. (Id. [quoting Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (20...

Excerpt: ...[alleged by plaintiff] more likely than not'—that is, evidence that would prevent a finding of that material fact. (Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 242 [quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851].) The moving party must satisfy this initial burden before the opposing party must controvert anything. (Id. [quoting Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (20...

Excerpt: ... that its October 12, 2022 Order allowed for the filing of a motion to compel further responses upon Defendant's failure to timely comply. For the reasons addressed below, Plaintiff's motion for terminating, issue and/or evidentiary sanctions is premature and unwarranted. However, the court finds that further responses to the discovery requests should be ordered and monetary sanctions are warranted. Generally, the court “may make those orders t...

Excerpt: ...ing a protective order but he asserts in his reply that Defendant has not moved for one and that Defendant thus cannot assert objections based on commercially sensitive, trade secret, or private information. However, Plaintiff has not stated any objections to the entry of a protective order and has not addressed Defendant's contention that Plaintiff's review of and response to the draft protective order remains outstanding. Neither party has pres...

Excerpt: ...to adequately intervene or effectively care for Martinez by either providing additional care instructions to Hacienda Post-Acute, reporting the abuse and neglect to Adult Protective Services, in order to prevent further falls. As with the FAC, the allegations in the SAC are not adequately specific with respect to the alleged manner in which Dr. Nagavalli is supposed to have been made actually aware of the care home's purported neglect and abuse a...

Excerpt: ...at Plaintiff's evidence in opposition to the motion creates a triable issue of fact with respect to whether Defendants breached the standard of care. (Reply at 2, 3 n.1.) Accordingly, the court does not address this issue further in its ruling but accepts, for purposes of this order, that there exists a triable issue of fact as to whether Defendants breached the standard of care during labor and delivery. As for causation, Defendants present the ...

Excerpt: ...aims that the representative claims can successfully go forward. Given the Kim decision and the reasoning in Gavriiloglou, there are strong arguments presented why the California Supreme Court should find that plaintiffs retain standing to proceed with the representative PAGA claims. (Kim v Reins International California Inc (2020) 9 Cal.5 th 73, 91-92; Gavriiloglou v Prime Healthcare Management Inc (2022) 83 Cal. App.5th 595.) But if this case d...

Excerpt: ...nt sought an extension of time due to illness. Counsel sent an email on 8/30/22 extending the time to respond by three weeks (which plaintiff says meant three weeks from the August 17 due date, making responses due September 7, 2022) Plaintiff counsel sent an email on September 28, 2022 seeking responses and noting that “technically all objections have been waived.” Defendant served responses, which consisted only of objections, on September ...

Excerpt: ...nst the trust. (Powers v Ashton (1975) 45 Cal App.3d 783, 787; Han v Hallberg (2019) 35 Cal.App.5 th 621, 632 [a trust cannot sue or be sued or otherwise act in its own name, instead the trustee acts on behalf of the trust].) The complaint alleges all facts to state a cause of action for partition under Code of Civil Procedure section 872.230. The demurrer to the cause of action for an accounting is overruled. A co- ownership of real property was...

Excerpt: ...e contract between the parties is entitled “Indemnification by Owner for Hazardous Material Not Caused by Design-Builder.” This is the indemnification clause which forms the basis of Filanc's second cause of action for contractual indemnity. It is this cause of action that Lemoore seeks to strike in its motion brought pursuant to CCP §425.16. Lemoore's special motion to strike is denied. The second cause of action for contractual liability a...

Excerpt: ...ries to prisoners with certain statutory exceptions. (Gov. Code §844.6 [a public entity is not liable for an injury to any prisoner]; Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1383 [“Although a public entity may be vicariously liable for the acts and omissions of its employees (Gov. Code §815.2), that rule does not apply in the case of injuries to prisoners.”].) Among these exceptions is the liability of a public entity where an...

Excerpt: ...ifically addressed the issues needed for supplemental responses, demonstrated willingness to address privacy concerns through a confidentiality stipulation, and provided extensions and additional time. Plaintiff allowed approximately a full six weeks from the most recent communication from defense counsel before filing the motion. Additionally, the parties appear to have engaged in additional meet and confer efforts as ordered by the court on Nov...

Excerpt: ...e date and shall take precedence over all other cases, except older matters of the same character, and matters to which special precedence may be given by law.” Cross-Defendants have presented no persuasive or binding authority that the appeal of the preliminary injunction precludes Cross-Complainants from trial preference. Further, the court notes that even where preference is granted, the right to preference may expire if the case is mooted a...

Excerpt: ... appeal. The appellate court affirmed the award of attorney fees awarded in accordance with Civil Code §1717, CCP §1032 and CCP 685.040 at pages 40-41 of its opinion. This decision is the law of the case; it controls the award of attorney fees on appeal. (MBNA America Bank NA Gonnman (2006) 147 Cal.App.4 th Supp 1, 13-14 [Where a contract or a statute creates a right for the prevailing party to recover attorney fees, the prevailing party is als...

Excerpt: ...rogatories (Set One) and for Monetary Sanctions November 29, 2022 at 10:30 a.m. in D-8, J. Chrissakis Defendant's motions to compel are granted. Plaintiff is ordered to provide verified responses, without objections to Defendant's Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) within thirty (30) days of service of this Order. Additionally, if verified responses to Defendant's R...

Excerpt: ...mail archiving system (or a cloud storage) by IT without preservation of any emails sought by plaintiff, knowing this would compromise plaintiff's lawsuit. Here, plaintiff counsel sought emails, but did not take the precaution of sending a notice to preserve the emails. Defense counsel denies any knowledge about the city's IT decision to switch email archiving systems. Defense counsel met and conferred with plaintiff counsel about search terms an...

Excerpt: ...re shown to have vacated the premises. Plaintiff has demonstrated that the requisite notice to terminate the subject tenancy was provided. A thirty‐day written notice is adequate to terminate a month‐to‐month commercial tenancy. (Civ. Code §1946.) A thirty‐day notice does not have to state the reason for the eviction and may be without cause. (Ibid.) Here, the notice was provided by mail on July 13, 2022, indicating the tenancy was to be...

Excerpt: ...e restrained party if the final determination is that the plaintiff was not entitled to the injunction. (Code Civ. Proc. § 529; see also TopCat Productions, Inc. v. Michael's Los Feliz (2002) 102 Cal.App.4th 474, 478.) “[T]he trial court's function is to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum.” (ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14;...

Excerpt: ...asis of personal knowledge by one who is competent to testify as to the facts involved. (Kendall v. Barker (1988) 194 Cal. App. 3d 619, 624.) Regarding John, he contests proper service of the Complaint and Summons and further attests that he was not required to respond based on lack of service. John states in his declaration that he was never personally served with the Complaint and Summons and instead found a copy in his mailbox, without postage...

Excerpt: ...s to the declaration of Mike Casey. The court finds that the arbitration agreements signed by the four plaintiffs are not substantively or procedurally unconscionable. (Armendariz v Found Health Psyhcare Services Inc (2000) 24 Cal.4th 83, 114.) The agreements all preceded enactment of Labor Code §432.6 (effective 1/1/20), which is not applied retroactively. (Labor Code §432.6, subd (h) [ This section applies to contracts for employment entered ...

Excerpt: ...the Workers' Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96.) “An exception to this general rule of pleading and proof by the defendant appears in the situation where the complaint affirmatively alleges facts indicating coverage by ...

Excerpt: ...trate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) The court's role under the FAA is limited to determining (1) whether a valid agreement to arbitrate exists and, if so, (2) whether the agreement encompasses the dispute at issue. (Chiron Corp. v. Ortho Diagnostic Systs.,...

Excerpt: ...” under the heading “Renter” is sufficient to establish Defendant Corey as the exclusive renter, while Plaintiff asserts that this receipt is insufficient to demonstrate a lack of rental relationship or liability on Tahler's behalf. In the court's view, the receipt appears to relate primarily to the payment for the claim arising from the subject collision and does not establish the parties to the rental agreement or the terms with respect t...

Excerpt: ... 415.10.) However, under section 415.20(b) of the California Code of Civil Procedure, service may also be accomplished, in lieu of personal delivery, by leaving a copy of the summons and complaint at the person's dwelling house or usual place of abode in the presence of a competent member of the household and subsequently mailing a copy to the place where the summons and complaint were left, also known as substituted service. (Id. § 415.20(b).) ...

Excerpt: ...possession issued on 5/9/2022. On 9/13/22, Defendant filed an ex parte application to set aside default and default judgment on the basis of excusable surprise, given that she was never served with summons and complaint. The court granted to motion at a hearing on 9/15/22 and ordered Defendant to file an answer within 5 days. Demurrer (filed 9/20/22) The complaint is based on a 3-day notice to pay rent or quit, but no notice is attached to the Co...

Excerpt: ...of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1410.) Declarations must be made on the basis of personal knowledge by one who is competent to testify as to the facts involved. (Kendall v. Barker (1988) 194 Cal. App. 3d 619, 624.) Defendants seek relief on the basis of mistake, i.e., that they believed there was no requirement to respond until all defendants had been served with the Complaint and Summons. Wit...

Excerpt: ...04) 32 Cal.4th 771, 790.) A plaintiff must demonstrate that defendant is guilty of something more than negligence; he must show reckless, oppressive fraudulent or malicious conduct. (Delaney v. Baker (1999) 20 Cal.4th 23, 31 [recklessness refers to a subjective state of culpability, which has been described as a "deliberate disregard" of the "high degree of probability" that an injury will occur].) "Recklessness, unlike negligence involves someth...

Excerpt: ...lso violates a duty independent of the contract arising from principles of tort law…… An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty].) In addition, the court sustains the demurrer to the second and third causes of action on the grounds that no actual harm has been alleged. There is a claim of excessive seepage, but no claim of crop loss. The inference is that the seepage...

Excerpt: ...o the meet and confer letters of counsel are overruled. In ruling on a demurrer, this court is required to accept as true the allegations of the underlying pleading, but not contentions, deductions or conclusions of fact or law. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) Here, the first amended petition alleged respondents were engaged in a project consisting of the secret transport of water from wells near the City of Lemoore, to Blakeley Canal...

Excerpt: ...terests of the Living Trust were assigned to Hanford Renaissance LLC. The Living Trust (even if it could be a party to a lawsuit), no longer has an interest in the real property in Hanford that was security for the loan. The court agrees with plaintiff that the Living Trust has no standing to file the proposed cross-complaint. (Johnson v County of Fresno (2003) 111 Cal App.4th 1087, 1096 [ once the transfer has been made, the assignor lacks stand...

Excerpt: ...at is better than when the lease commenced].) Here, the SAC at ¶9 cited to the lease allegedly requiring inspection of the air conditioner on a monthly basis, and repair and replacement of defective conditions of the air and heating systems and roof. The court cannot say as a matter of law at the pleading stage whether plaintiff is entitled to recover damages for the alleged failure to inspect, repair or replace defects discovered after regainin...

Excerpt: ...willingness to consider the actions of Valdez in failing to follow her orders and completing job assignments supports plaintiff's harassment claims because evidence of discrimination based on protected status may be evidentiary support for the harassment claims. (Brennan v Townsend & O'Leary Enterprises Inc (2011) 199 Cal.App.4 th 1336, 1361[ The Supreme Court held that “discrimination and harassment claims can overlap as an evidentiary matter]...

Excerpt: ...s his agent. Defendant has also failed to present evidence that plaintiff's husband, the resident at defendant facility, took actions that would have led defendant to reasonably believe his wife was his agent, with authority to sign the arbitration agreement. (Flores, supra at 587‐ 88 [agency “can be established either by agreement between the agent and the principal, that is, a true agency [citation], or it can be founded on ostensible autho...

Excerpt: ...784.) Defendant is entitled to a verified response from plaintiff as to the medical care, examination and treatment received as a result of the accident. Defendant's motion to compel a further response to Form Interrogatory # 20.8 is granted. Plaintiff's objection that it is calling for expert information is overruled. Plaintiff's reference to the police report is inadequate. Defendant is entitled to a verified response from plaintiff as to the h...

Excerpt: ...cause of action do not address any facts underlying the lack of care plaintiff's decedent allegedly received from defendant. Defendant's demurrer to the second cause of action for medical negligence for failure to state facts sufficient to state a cause of action is sustained. The complaint is not directed to Dr. Magavalli, who was added as a Doe defendant eight months after the complaint was filed. Facts to support all elements of such a cause o...

Excerpt: ...leged in the complaint, or that may be judicially noticed. (Del E. Webb Corp v Structural Materials Co (1981) 123 Cal.App.3d 593, 604.) When determining the merits of a demurrer, the facts as alleged are accepted as true. (Ibid.) Workers compensation preemption is an affirmative defense that defendant must plead and prove and such conclusion may not be asserted based on non- existent facts, speculation and inferences. (Doney v Tombouratgis (1979)...

Excerpt: ... reduced the number of employees in this PAGA class by a third. The court at page 7 of its 3/16/22 order specifically ordered defendant to answer the previously ordered discovery responses as to “all current and former non-exempt hourly employees.” The court rejects defendant's assertion that plaintiff was required to file a motion to compel further responses by April 20, 2022, given the court order of March 16, 2022. Defendant recently filed...