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...