Excerpt: ...se documents in support of its demurrer. The court sustains petitioner's lack of foundation objection to the note, deed of trust, and certificate of death and sustains the hearsay, improper opinion testimony, and matter not capable of judicial notice under Evidence Code §451 and 452 objections as to the letter. The court does not find merit to the argument that this court does not have jurisdiction of the dispute due to the absence of an adminis...

Excerpt: ...of proving that party's liability for the loss or damage. Here, the discussion of defendant's financial situation was in the context of why plaintiff reasonably believed that defendant intended to continue to discuss settlement of this class action lawsuit. The statements may be considered in this motion in accordance with Evidence Code §1120 (b)(2) [an exception to the mediation privilege is if it relates to an agreement to extend the time to a...

Excerpt: ...re due 10 days after service of the notice of ruling. The court has considered the submission of plaintiff's supplemental responses which were forwarded to opposing counsel on the same day the motions to compel further responses were filed. The offer to consider further responses made by defendant counsel related to answers without objections. (Letter dated May 12, 2020.) The supplemental responses for the most part continue to object to the requ...

Excerpt: ...that, “I was not impeded by security.” If the process server had an escort, it is likely this would be described in the declaration. Defendants also dispute the assertion that the process server served Jane Doe as a person “apparently in charge” in an office left of the secretary in what the process server believed were defendants' administrative offices. Defendants assert in a declaration from the casino's chief financial officer, that t...

Excerpt: ...ause of action are discussed below. Defendant Topete and defendant Gonzalez' motions for summary adjudication of the first cause of action for sexual harassment are denied. (Gov Code §12940 (j)(3) [an employee is personally liable for sexual harassment].) There is a triable issue of fact if the daily sexual comments and frequent physical touching of plaintiff by Topete (8 to 10 times a day) was sufficiently pervasive and severe to constitute sex...

Excerpt: ...d to the complaint as an exhibit, and no facts were alleged or implied that the hospital offered a paid trainee position to plaintiff in its hospital science lab for the 2018 semester. All the communications in the email chain, obtained by defendant after meet and confer discussions with plaintiff, were between plaintiff and SJSU. The plaintiff presents an alternative theory of liability, but no facts are contained in the complaint to support a c...

Excerpt: ...ng papers at footnote 3 page 5 also asserted hospital is engaged in interstate commerce. (Patterson v Tenet Healthcare Inc (8th Cir 1997) 113 Fed 3d 832, 835-37 [FAA governs arbitration of disputes of employees involving interstate commerce [excluding maritime or railroad employees]; Willis v Prime Healthcare Services Inc (2014) 231 Cal.App.4 th 615, 626 [payments of Medicare or Medicaid funds are transactions involving commerce; receipt of Medic...

Excerpt: ... are persuasive that the process server could not have obtained service by serving Mr. Nolan at the address on the loan documents. Mr. Nolan denies being present at the alleged service address. Mr. Nolan denies being an agent for service of process for the company. There is no declaration from the process server to contradict these assertions. The few facts set forth in the process server's declaration of due diligence concerning the appearance o...

Excerpt: ...mplaint and cross-complaints. To the extent the declaration is based on information and belief, and not personal knowledge, it is inadequate to support the argument that severance for discovery and trial is needed to reduce the prejudice, delay and unnecessary expense to NSP3 (and Borga Steel) while at the same time not causing undue prejudice to the remaining parties. (Pelayo v JJ Lee Management Co Inc (2009) 174 Cal.App.4 th 484, 494 [key is if...

Excerpt: ...arent from the delay in filing. The court takes judicial notice of 17CM0213 in accordance with Evidence Code section 452, subdivision (d). Defendant was convicted of a misdemeanor drunk driving charge stemming from the accident at issue. Prior convictions were not alleged. The defendant was ordered to complete a first offender 3 month DUI program. This contradicts the allegation in the first amended complaint that plaintiff was a DUI repeat offen...

Excerpt: ...ffirmative defenses in defendant's 3/29/19 answer. Plaintiff's motion fails to address the statute of limitation defense. Due to the above defects, the plaintiff's motion for summary judgment did not shift the burden to defendant. The motion for summary judgment must be denied. (Rawlings v DM Oliver Inc (1979) 97 Cal.App.3d 890, 896.) ...

Excerpt: ...ity against a concurrent tortfeasor, 'there can be no indemnity without liability].; Civ. Code §2778 (2) [the person indemnified is not entitled to recover without payment thereof].) This applies to the first three causes of action in the cross- complaints for equitable indemnity, equitable apportionment, declaratory relief. The claims set forth in the cross-complaints in any event duplicate affirmative defenses in the answers of defendants/cros...

Excerpt: ...nahue v State of California (1986) 178 Cal.App.3d 795). The claim in Donahue was premised on the theory that the Department of Motor Vehicles negligently permitted an uninsured driver to take a licensing test. The complaint alleged that the testing officer failed to use due care in directing the operation of the vehicle. Donahue is distinguishable. A claimant need only include a general description of the loss, so far as it may be known at the ti...

Excerpt: ...facts requisite to a valid service].) Defendant has filed a declaration challenging the purported substitute service on the casino and the individual defendants on the basis of: 1) failure to supply details as to why the process server believed he had served a person apparently in charge in light of defendant's declaration that no person described by the process server was employed by defendant and could have been considered a person in charge an...

Excerpt: ...ve an action tried in the county of his or her residence unless the action falls within some exception to the general venue rule].) The motion to change venue based on CCP §397, subdivision (b ) is denied. The plaintiff has failed to allege facts to support a finding that there is reason to believe an impartial trial cannot be had in Kings County. (Nguyen v Superior Court (1996) 49 Cal.App.4 th 1781, 1791 [T]he prospect of jury trial is extremel...

Excerpt: ...ement provided any dispute was to be construed under Colorado law; there is no equivalent statute in Colorado; 3) by its unambiguous language, indemnity for defense costs is not precluded under Labor Code §3864. For the reasons discussed below, the court declines to consider the first or second argument as a basis for its ruling. Instead, the court finds that by its unambiguous language, Labor Code §3864 does not prevent a third party from seek...

Excerpt: ...led to credit for the restitution paid in the sum of $6000. CCP §1021.4 provides that in an action for damages against a defendant based upon that defendant's commission of a felony offense, for which the defendant has been convicted, the court may award attorney fees to a prevailing plaintiff. The court sua sponte takes judicial notice of 17CMS6083 and the transcript excerpts of the preliminary hearing and the sentencing hearing. The notations ...

Excerpt: ...should be taken into consideration in setting the date and conditions of the deposition.) No sanctions are ordered. ...

Excerpt: ...of 2019. The FAC alleged that a false and defamatory blacklist letter was placed in plaintiff's personnel file with the intent to prevent plaintiff from pursuing a career as a firefighter. It was alleged that the placement of this letter in plaintiff's personnel file without giving plaintiff the opportunity to challenge the facts alleged therein was contrary to defendant's written policy and procedures. The court finds that the discovery of the f...

Excerpt: ...drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, trial courts usually follow a three‐step analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movan...

Excerpt: ...oreign taxpayer in this state may be forfeited, if a taxpayer fails to file a tax return required by this part].) Plaintiff has not submitted any documentation which would rebut this inference. Instead, plaintiff argues that its suspended/ forfeited status was known before it renewed its sister state judgment and should have been raised within the 30 day period provided by Code of Civil Procedure section 1710.40, subdivision (b ). Plaintiff argue...

Excerpt: ...1048 (b) ]The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross–complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.] Th...

Excerpt: ...ill accept as true the proof of service that reflects service on that date. The court finds that the right to object was not waived by plaintiff. However, the court orders plaintiff to produce a privilege log as to any document in plaintiff's possession or control that is privileged as a result of work produce, attorney client privilege, which objection plaintiff asserted in response to requests ##76-81 and 83-92. The privacy objection made as to...

Excerpt: ... requiring electronic documents to be identified with respect to the request number, does not apply to the discovery motion presently before the court. The court agrees with plaintiff that the requests to produce documents ##25-27 related to “why you failed to timely perform obligations” under the three project contracts were argumentative. The court finds that by producing all documents concerning delays due to “severe weather impacts” o...

Excerpt: ...t exists if responding to telephone calls on plaintiff's days off was “required” by defendant employer. ( Cochran v Schwans Home Serv (2014) 228 Cal.App.4th 1137, 1145.) Plaintiff testified to receiving telephone calls of five minutes or so several times a week. The court has reviewed the additional plaintiff deposition excerpts, which reflect that plaintiff did not always answer the telephone call from defendant. Sometimes she would listen t...

Excerpt: ... complained they could not see. The lights were not turned back on. (FAC ¶ 12) Another danger was that there were no accessible walkways through the premises to a parking area for persons in a wheelchair. (FAC ¶15) A five to six inch lip between the gravel parking lot and street had to be negotiated by plaintiff. Plaintiff was forced to travel backwards in his wheelchair due to the fact it was the easiest way for him to maneuver through gravel....

Excerpt: ... fee could never be determined until after the patient is evaluated and for this reason, the law does not require a hospital to provide an estimate of the cost of treatment at an emergency room. (H&SC §1339.585.) The court has already found that the legislature has spoken as to the requirements of a hospital to disclose its charges for fees and services. (H&SC §1339.51.) Plaintiff concedes that she is not alleging that defendants failed to comp...

Excerpt: ...rino for injury to an employee of Collins Air. (Ex 5) The answer to the cross- complaint does not expressly raise Labor Code 3864 as an affirmative defense. The cross complaint does raise an affirmative defense of failure to state facts sufficient to state a cause of action. The motion for summary adjudication seeks an order that Collins Air is contractually liable for the defense costs incurred by Leprino. Summary adjudication of the duty to def...

Excerpt: ...the Cotton project. Notice was not given by Soligent to any lender. Soligent is not asserting a stop notice or claim against a payment or performance bond, or bringing any claim against a construction lender. No authority is cited that a supplier may not file a mechanic lien under these circumstances. Soligent supplied the solar panels installed by AHE on a residence owned by Cotton. As a material supplier, Soligent has a statutory right to file ...

Excerpt: ...ailing party under Civil Code section 1717. The enforcement of this judgment was resisted by Pinedale. Pinedale asserted illegality of the contract between the parties and made a rescission argument. The City of Fresno is a prevailing party in its suit to enforce the judgment. The city is entitled to its attorney fees and costs under Civil Code §1717, CCP 1032, CCP §685.070 (a )(6) and §685.040. The authority cited by Pinedale to the contrary ...

Excerpt: ...he subpoena noting that it was subject to criminal penalties for releasing tax documents without a court order or consent from the taxpayer. Defendant contends this was not an “objection,” so this motion, directed to plaintiff after plaintiff failed to respond to letters seeking consent, filed 67 days after the CPA letter is not barred by the 20 day time limitation. No other code section was cited in support of the motion. The court does not ...

Excerpt: ...rastate business is not being conducted by a foreign limited liability company when it takes actions in California to collect a debt. (Conseco Marketing LLC v IFA & Ins Services (2013) 221 Cal.App.4 th 831, 840 [the SSFMJA does not contain a requirement that a judgment creditor which is a foreign corporation or foreign limited liability company, such as judgment creditor here, needs to qualify with the Secretary of State as a precondition to invo...

Excerpt: ...eed of trust. Defendant's demurrer to the 4 th and 6 th causes of action brought by Khodadad on the basis of lack of standing is sustained. The FAC at paragraph 55 alleges that Khodadad lost his investment and equity in Cashera as a result of the alleged fraud and wrongful foreclosure. The sole authority cited by plaintiff in opposition to the demurrer is distinguishable. (Munger v Moore (1970) 11 Cal.App.3d 1, 8 [a successor in interest to prope...

Excerpt: ... injury suffered by plaintiff could have been caused by the x-ray equipment due to an issue with the sensor and/or the wire connecting it to the computer. Defendants objected to Dr. Smith's declaration on the grounds that it lacked foundation because Dr. Smith did not state he had examined the x-ray machine and because Dr. Smith merely speculated that there was a possibility the digital detector and its attachments could have been the source of t...

Excerpt: ...: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:106 at 9(i)-90.) The court finds that all parties stipulated that the code would be followed with reference to what would happen following the premature conclusion of plaintiff's deposition. (RT 104- 105.) CCP 2025.520 provides that the deponent has 30 days after notice by the deposition officer that the transcript is available to read, correct and sign the transcript. The deponent may �...

Excerpt: ...ve authority to accept service of process on behalf of the CHP. Accordingly, the motion to quash service of summons and complaint is granted. ...

Excerpt: ...oposed judgment submitted by the City of Fresno. Respondent objects to the court consideration of the City's motion for attorney fees and argues that the motion is premature. The court has no objection to continuing the hearing on the motion until after the statement of decision is filed and judgment is entered. (CRC 3.1700.) The parties may select a hearing on the motion. In the interest of expediency, the court has reviewed the pleadings of the...

Excerpt: ...) 252 Cal. App. 2d 256, 269; Thomas v. Doorley (1959) 175 Cal. App. 2d 545, 549; Ayer v. Robinson (1958) 163 Cal. App. 2d 424, 428–429. Demurrer The plaintiff has requested, and the court grants, plaintiff leave to amend to separate out the claims of the father from the claims of the son. The demurrer to the 4 th cause of action for NEID is sustained with leave as to the son. Given the physical injury suffered by the father, the claim for NEID ...

Excerpt: ...must be established to support the heightened need for supervision before school and during recess as set forth in the minor's IEP due to the minor's “challenged motor skills, energy level and his tendency to lose his balance and fall when accidently pushed or fatigued.” The extent of the minor's disabilities before the fall will necessarily be part of the evidence at the liability phase of trial. Any prejudice to defendant from jury sympathy...

Excerpt: ...was not given by Soligent to any lender. Soligent is not asserting a stop notice or claim against a payment or performance bond, or bringing any claim against a construction lender. No authority is cited that a supplier may not file a mechanic lien under these circumstances. Soligent supplied the solar panels installed by AHE on a residence owned by Cotton. As a material supplier, Soligent has a statutory right to file a mechanic lien for the non...

Excerpt: ... does not object to the intervention by James River, but takes issue with the attorney fee request in the answer and the naming of the plaintiff in the cross-complaint for indemnity, contribution, apportionment of fault etc. The court agrees with James River that intervention should first be granted and any objection to the allegations within the answer and cross-complaint may be the subject of a demurrer and/or motion to strike after the propose...

Excerpt: ...dges that the affirmative defenses of waiver, estoppel or latches are not relevant to its motion. The reply withdraws the declarations addressing the 2/21/19 reservation of rights letter to a lawsuit amended to name Paramount and its medical practitioners in August of 2017. Had MPT's summary judgment been filed to solely address a duty to insure and defend Paramount for the acts and omissions of Dr Scanlon, the court would agree that an argument ...

Excerpt: ...urt finds that plaintiff has failed to establish that plaintiff is likely to prevail on the merits of its complaint for misappropriate of trade secrets, breach of contract, conversion and imposition of a constructive trust. Plaintiff has failed to establish that it will suffer irreparable injury unless a TRO issues and that monetary damages could not offer adequate relief. If the request for a TRO is brought under B&PC §17203, defendant has made...

Excerpt: ...) 252 Cal. App. 2d 256, 269; Thomas v. Doorley (1959) 175 Cal. App. 2d 545, 549; Ayer v. Robinson (1958) 163 Cal. App. 2d 424, 428–429. Demurrer The plaintiff has requested, and the court grants, plaintiff leave to amend to separate out the claims of the father from the claims of the son. The demurrer to the 4 th cause of action for NEID is sustained with leave as to the son. Given the physical injury suffered by the father, the claim for NEID ...

Excerpt: ...s the requirement of a public entity to notify the claimant if it deems the claim defective. (Gov. Code §910.8.) Unless notice of defect is given, the public entity waives a defense based on such defect. (Gov. Code §911; Phillips v Desert Hosp Dist (1989) 49 Cal.3d 699, 707.) The documents attached to the declaration of plaintiff counsel indicates that plaintiff was advised the claim had been rejected. The attorney does not attach a letter whic...

Excerpt: ... liability of a third party tortfeasor, if there was any comparative negligence from the employer, and the right of subrogation of the employer against any recovery from the third party by plaintiff. No case was cited to support a finding that the WCAB has exclusive, or first in time jurisdiction of such disputes. First in time jurisdiction does not apply to the third party claim filed in this court, since the same parties and same causes of acti...

Excerpt: ...e would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].) The objections asserted in opposition to the motion to amend appear to be ones that should be addressed in the context of a demurrer. (California Cas Gen Ins Co v Sup Ct (Gorgei) (1985) 173 Cal App.3d 274, 281, overruled on another point in Kransco v American Empire Surplus...

Excerpt: ...l. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:459.) In addition, the affirmative defense alleged that plaintiff delivered multiple defective refrigeration units and failed to properly repair the defects and milk had to be dumped due to inadequate cooling over the course of a month. Failure to mitigate damages may occur after a wrong where some damages may still be averted. (United States v Sierra Pac Ind<004c0055005...

Excerpt: ...l. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:459.) In addition, the affirmative defense alleged that plaintiff delivered multiple defective refrigeration units and failed to properly repair the defects and milk had to be dumped due to inadequate cooling over the course of a month. Failure to mitigate damages may occur after a wrong where some damages may still be averted. (United States v Sierra Pac Ind (2012) 879 ...