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 ...