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...

Excerpt: ... have corrected the dangerous condition. (Gov. Code §835.) The complaint alleged that plaintiff slipped and fell on a wet floor that had been recently mopped. The employees were alleged to have mopped the floor during visiting hours, and failed to place warning signs of the wet floor. The court accepts these facts as true and finds that the TAC adequately alleged facts sufficient to state a cause of action under Government Code section 835. (Zel...

Excerpt: ...ne if some of the medical expenses incurred by plaintiff related to plaintiff's prior medical condition, and the report of defendant's IME, which discounted permanent damage to plaintiff's muscles or back. The court finds that the objections and answer were adequate responses to the interrogatory. Plaintiff's sanction request is denied. Requests for admission As to Defendant Vargas (Some of the questions have been summarized/ shortened) #5 asks d...

Excerpt: ...d with the motion to intervene].) Leave to file a complaint in intervention containing a caption naming intervenors as substituted class representatives is granted. Case law supports a motion to intervene by putative class members when the initially named class representative is found unsuitable. (La Sala v American Savings & Loan (1971) 5 Cal.3d 864, 872 [in the present case, the superior court did not find that plaintiffs were not, at the comme...

Excerpt: ...kly Admin Inc v Superior Court (2020) 9 Cal.5 th 279, 326.) Defendant argues breach of fiduciary duty is a fact issue for a jury, but a breach of fiduciary duty will be treated as an equitable action when an accounting is required. (Van de Kamp v Bank of America (1988) 204 Cal.App.3d 819, 864 [Where an accounting is required, the action is equitable; An accounting is necessary where the fiduciary becomes liable for various sums of money and plain...

Excerpt: ...tives. On these facts, we conclude that dismissal of the action requires prior notice to the class]; Jaimez v Daiohs USA Inc (2010) 181 Cal.App.4th 1286, 1308 [ As leave to amend is routinely granted and because the class presented two new class representatives (in direct response to the trial court's concern regarding the adequacy of Jaimez as a class representative), we conclude the trial court abused its discretion in denying leave to amend].)...

Excerpt: ...ve not been resolved. In plaintiff's points and authorities at page 6, plaintiff has agreed to limit deposition category #4 to documents reflecting the number of 2018 Ford Fiesta vehicles repurchased or replaced by Ford under California's Lemon Laws (limiting the request from “any state or federal lemon law.”) Plaintiff also agreed to limit the request to repurchases or replacement due to similar warranty non-conformities as the subject vehic...

Excerpt: ...n order to recover under this code section, plaintiff must first prevail on her claim of discrimination or harassment. (Carter v Cal. Dept of Veteran Affairs (2006) 38 Cal.4 th 919. 925 Fn 4. ) The California Supreme Court has found that this code section describes a separate unlawful employment practice, rejecting the argument that an independent cause of action had not been stated. (Ibid.) This court overrules the argument that plaintiff did no...

Excerpt: ...or should have known of the conduct and fails to take immediate and appropriate corrective action]) and the 7th cause of action for intentional infliction of emotional distress. Within ¶25 of the second cause of action, plaintiff seeks recovery for emotional distress due to the sexual harassment against her by her supervisor. Punitive damages are also being sought against Duran in the second cause of action. The only way to reconcile the cases c...

Excerpt: ...laintiffs are simply requesting the addition of a survival claim for damages incurred by decedent before his death, such as personal property damages and medical expenses. Plaintiff's SAC is to be filed within 10 days of the court hearing. ...

Excerpt: ...hat the repairs to conform the vehicle to applicable warranties were not commenced within a reasonable time, nor completed within 30 days. The complaint did not allege the number of days the car was in the shop for repairs. This information is included within the repair history (and was recited in the opposition P&A). Given the specificity of the facts required to state a cause of action and the conclusory allegation of its violation, the court f...

Excerpt: ...o support the defense. (See's Candy Shops Inc v Sup Ct (Silva) (2012) 210 Cal. App. 4 th 889, 900.) If the plaintiff does not make this showing, it is unnecessary to examine the [defendant's] opposing evidence and the motion must be denied. (Ibid.) In connection with its summary adjudication motion, plaintiff did not present an expert opinion, or any other evidence contradicting defendant's affirmative defenses based on comparative negligence, su...

Excerpt: ...West Management Group. The FAC does not allege that Inspire Brands entered into a continuing guaranty agreement. Absent such an allegation, the obligations of Inspire Brands terminated on the assignment of the lease to Far West Management Group. (Central Building LLC v Cooper (2005) 127 Cal.App.4 th 1053, 1059.) On that basis, the FAC fails to state facts sufficient to state a cause of action. The motion to strike the punitive damage and attorney...

Excerpt: ...e FAC filed by plaintiff contains paragraphs requesting punitive damages (¶¶ 34, 59, 76) and a prayer for punitive damages was added in the FAC (#5). In addition to having been filed beyond the time for amendment, the FAC was also filed in direct contradiction to the court order on the motion to strike. The court sua sponte moves to strike the FAC. The court renews its prior order that the punitive damage claims are stricken without prejudice. ...

Excerpt: ... from 1/8/2018 until 3/14/2019 (1 year 65 days). Neither party discussed the relevance of the right to amend a pending PAGA case. (Labor Code §2699.3 (a)(2)(c) and the impact of the fact that this case had been removed to federal court soon after it was filed, remanded back to this court on 1/22/20, and then subject to a motion to stay brought by defendant that was to be heard in March of 2020, but was not heard and granted until 9/2/20. The sta...

Excerpt: ... it is within defendant counsel's discretion to schedule a zoom deposition of plaintiff instead. The prejudice to Weaver if the trial is vacated outweighs any impact on defendants' trial preparations given the fact that the five year statue will require dismissal of this case in June of 2022. (This case transferred in from Fresno and was filed in Fresno on 6/29/2017.) ...

Excerpt: ...action and one in which the plaintiff ordinarily would have no right to jury trial; Santa Ana Mortgage & Investment Co v Kinslow (1938) 30 Cal App. 2d 107, 109 [ An action to quiet title and an action to cancel an instrument are equitable actions in which a trial by jury is not a matter of right].) As noted by plaintiffs, resolution of these causes of action may result in fact determinations that might preclude the need for a jury trial on the le...

Excerpt: ...ere obtained, and if defendant agrees to produce the same. (CCP § 2031.210 and 2031.230 [requirements of a code compliant response].) Defendant only agreed to produce those documents it “may have obtained” from the GM authorized repair facility. This is a vague and inadequate response. Any document subject to a trade secret objection shall be noted in a privilege log. (CCP § 2031.240) Thereafter, the court may be asked to resolve the trade ...

Excerpt: ...from plaintiff's medical care providers. There was no discussion of plaintiff's vaccination status or comorbidities. Plaintiff ‘s ex parte application for a protective order was also not supported by any relevant declarations and was recently denied. The defendant has assured plaintiff that the conference room will accommodate distance between the deponent and other persons. Masks will be worn when persons are not speaking. No good cause was sh...

Excerpt: ...ime period of 1/12/2019 through 6/9/21] and 17.1 [facts underlying response, identity and description of documents to all responses not an admission to request for admission] is granted in part. The reply contends that neither the original, nor supplemental responses were verified. The responses shall be verified within 15 days from service of the notice of ruling. (Responses contained objections and some fact specific answers. Case law has held ...

Excerpt: ...aintiff's vehicle was T-boned by a vehicle driven by defendant Lopez. The city asks this court to sustain its demurrer to the complaint without leave to amend and to dismiss this complaint against the city with prejudice on the grounds that on the face of the complaint, and existing state statutes, it can be found as a matter of law that the city of Hanford does not own, control or maintain Highway 198. (Goddard v Department of Fish and Wildlife ...

Excerpt: ...enter and it has within its ability the authority to determine the identity of any person who may have spoken with plaintiff about a refund or replacement under the Song Beverly Act. Further verified responses are due 20 days from service of notice of ruling. Plaintiff's motion to compel a further response to special interrogatories Plaintiff's motion to compel further verified responses to special interrogatories ##14, 26, 27, 40-45, 51-56, 57 i...

Excerpt: ...3 [disputed], #4-10.) The FAC at ¶20 and plaintiff's discovery responses alerted defendant to her claim that defendant's failure to inspect, maintain and replace the chairs it provided to visitors created the dangerous condition. This supports a claim under Government Code §835, subdivision (a), whereby a public entity will be liable for an injury caused by a dangerous condition due to a negligent or wrongful act or omission of an employee of t...

Excerpt: ...e only affirmative defense clearly summarized was the third. The defendant is ordered to provide a further verified response 20 days from service of notice of ruling specifying the facts behind the collective bargaining agreement affirmative defense, identifying the witnesses and documents relevant to this defense. Sanctions are not ordered. Plaintiff's motion to compel further responses to special interrogatories Plaintiff's motion to compel fur...

Excerpt: ...elt system (designed to remove hulls and trash from the product) was the sole cause of plaintiff's injury. (Campbell v Southern Pacific (1978) 22 Cal.3d 51, 56.) Opposition to the summary judgment motion was filed by both the plaintiff and cross-defendant Roman Electric (the entity that located and installed the emergency stop buttons on the conveyor belt system). It is undisputed that after McDowell designed, manufactured and installed the conve...

Excerpt: ...ervice representatives are trained to respond to consumer inquires for repurchase or replacement in California]. The burden objection is not specific to the document requests. Moreover, defendant failed to support its burden objection with facts as to the quantum of work required to produce the requested training materials, and why the requests are unduly burdensome in relation to the relevance of the requests. (West Pico Furniture Co v Super Ct ...

Excerpt: ...icance of the doctor visit until the hospital's medical records were received by his office on 7/19/21 and reviewed. The exparte application to augment the expert witness list was noticed on September 13, 2021. (Naphcare attempted to notice Dr Smith's deposition prior to the 30 day cut off, but plaintiff objected to the deposition.) The court does not find inexcusable mistake or neglect in counsel not recognizing the need to name Dr. Smith as a n...

Excerpt: ...elius is engaging in a legal analysis. The conclusions go beyond offering expert opinion on a subject embraced by the issues in the case, and they lack foundation (Downer v Bramet (1984) 152 Cal App.3d 837, 841[the general rule is that opinion evidence which is otherwise admissible is not made inadmissible simply because it embraces the ultimate issue to be decided by the trier of fact. ( Evid. Code, § 805.) The cited rule does not, however, aut...

Excerpt: ...fied under modern discovery procedures].) It is alleged that plaintiff was terminated from his employment after regularly complaining of having to work overtime, and after he gave his employer a doctor note which diagnosed plaintiff as being overworked, and suffering from anxiety and panic attacks. The doctor placed plaintiff on medical leave for several weeks. While still on medical leave, defendant fired plaintiff. These facts support the cause...

Excerpt: ...he boundary of an “of” division of a lot commences its measurements from the side of the roadway. The notes on the Laguna de Tache Grant provide that, apart from the grant boundary on the north, “ All other lots are figured to center of roads and all measurements are to road centers except where otherwise noted.” This contrasts with the Hillard Tract (discussed in the Earl decision) that did not have such instruction. (Earl v Dutour (1919...

Excerpt: ...two causes of action (for attorney fees against Grace's estate and to declare a violation of a no contest clause by litigation filed in San Mateo) and to add two causes of action for enforcement of an alleged agreement between the siblings as to how to distribute the assets of their mother's trust, and for an order to sell the real property held in trust. The court finds that the motion to amend is untimely asserted. (Record v Reason (1999) 73 Ca...

Excerpt: ...und to have probable validity, it would be defendants that would have to post an undertaking to have the lis pendens expunged].) In terms of the standing objection asserted by defendants, Cashera Plaza LLC is the only plaintiff named in the SAC with regard to the causes of action to set aside the foreclosure sale, cancel the note, deed of trust and trustee's sale deed, quiet title, and for breach of contract. Plaintiff Khodadad, is a principal an...

Excerpt: ...e and electronic address. (Filed 3/24/21.) The opposition was timely filed. The opposition was served in the manner requested by defendant in its notice filed in March of 2021. There is no factual support for the request for a continuance to file a reply expert declaration. Defendant's motion for summary judgment or alternatively summary adjudication is denied. The declaration of plaintiff's expert filed in opposition to the motion creates a tria...

Excerpt: .... The plaintiff obtained a right to sue letter from the FEHD before the original complaint was filed on 8/26/2019. The second cause of action in the original complaint contained a cause of action under the FEHA for disability/ medical condition discrimination. A FAC was filed on 10/4/2019. The complaint did not contain any causes of action brought under the FEHA. The first cause of action for termination in violation of public policy does not ref...

Excerpt: ...f uncertainty is overruled. The court does not find these affirmative defense so unclear as to prevent plaintiff from responding to them. (A.J. Fistes Corp v GDL Best Contractors Inc. (2019) 38 Cal.App. 5th 677, 695 [demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a party cannot reasonably respond].) Plaintiff argues that affirmative defense #9 [defendant acted in reliance on applicable la...

Excerpt: ...pportunities. The hospital objected to the declaration of plaintiff at ¶2. Plaintiff stated that was notified she was a match with the hospital and this meant to her that she was being offered a one year paid internship as a Clinical Lab Scientist (CLS) trainee. Plaintiff's belief that she was being offered this position was not a legal conclusion. Her belief she was being offered a paid intern ship position was based on the email from Washingto...

Excerpt: ...ve damages shall be filed 10 days after service of notice of ruling. The complaint alleged fraudulent concealment of a known “defective 6L80 MYC Hydra- Matic automatic transmission” based on GM's alleged failure to disclose this defect prior to the sale in its advertisements to the public about the vehicle. The plaintiff never directly communicated with GM. Knowledge of the defect by GM was based on “knew or should have known” allegations...

Excerpt: ...ntradicts plaintiff's contention that an applicant was required to sign the arbitration agreement in order to be hired. The arbitration agreement provides for an award of attorney fees and costs to a prevailing employee in a wage and hour action. The agreement provides for discovery and the right to seek judicial review “when the arbitrator's decision … is inconsistent with the protection of a party's statutory rights.” The court does not f...

Excerpt: ...e court chose not to adopt the tentative ruling, The order after hearing, back in 2019, granted defendant's bifurcation motion. It did not contain any “without prejudice” language. Now two and a half years later, after considerable discovery has been undertaken, plaintiff seeks reconsideration of that order. Defendant objects to reconsideration on the grounds that plaintiff has failed to present new or different facts. (CCP §1008.) Plaintiff...

Excerpt: ...ms of the family trust and he should be protected from a dispute among family members as to entitlement to the lease payments. This lawsuit was filed on 2/5/20. Oliveira was not named as a defendant until the filing of the second amended complaint in November of 2020. This is Oliveira's first demurrer. A trial date has not been set. It appears to the court that how lease payments are to be paid during the pendency of this lawsuit is a matter that...

Excerpt: ...v Bales (1990) 221 Cal.App.3d 227, 230.) Cross-complainants argue the public policy protecting a lawyer from a lawsuit by the opposing party does not exist once the lawyer has been sued by the client and where participation in a fraud in the inducement claim has been alleged. However, cross-complainants have failed to cite to persuasive authority to support this argument. Little's duty and undivided loyalty were to plaintiff. As noted in the repl...

Excerpt: ...iff's expert found that the examination of decedent after he returned to the jail from court in a restraint chair ( after having been found guilty by the jury and acting out in court) was negligent. The expert found that NaphCare's employee's failure to review plaintiff's mental health records maintained by NaphCare in its computer system would have alerted the employee to the fact that decedent was not telling her the truth when he denied a past...

Excerpt: ...filed in this matter on 11/24/20) or the opposition ( filed late on 12/31/20). At the hearing on the motion on 1/6/21, the court was informed the parties “had come to an agreement.” At the hearing on 3/17/21 plaintiff counsel represented they were still awaiting signed documents from the defendant. No additional pleadings have been filed. The court assumes the reply was filed by mistake. It appears that the parties have resolved this motion. ...

Excerpt: ...ation was not given. The failure to give the notice made the notice void. (Civil Code 1946.2 (d) (4) [An owner's failure to strictly comply with this subdivision shall render the notice of termination void]. The absence of a notice of termination is not a defect in the complaint that can be cured by amendment. (Berkowitz v Palm Springs La Quinta Development Co (1940) 37 Cal.App.2d 249, 251 [It is thoroughly settled that plaintiff's cause of actio...

Excerpt: ...loud v Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) The motion for judgment on the pleadings may rely on discovery admissions by the opposing party, but only if they are clear and unambiguously inconsistent with the allegations of the complaint. (Del E. Webb Corp v Structural Materials Co (1981) 123 Cal.App.3d 593, 604.) The responses attached to the declaration of defendant counsel consist of checks from plaintiff to defendant in a su...

Excerpt: ... given the fact that a summary judgment has already been filed and trial is set to commence on July 19, 2021. The undue delay in seeking to add causes of action under the FEHA are noted. The plaintiff's original complaint filed on 8/26/19 contained a cause of action for disability discrimination and harassment under the FEHA. The last date of employment was alleged therein as August 14, 2018. The First Amended Complaint filed on October 4, 2019, ...

Excerpt: ...selecting a continued hearing date. The tentative ruling on the future continued hearing is set forth below. In a supplemental brief, defendants requested that the court take judicial notice of verified discovery responses from plaintiff. Defendants contend that plaintiff received the trust documents within two months of her husband's death, so that the one year statute of limitations set forth in Code of Civil Procedure section 366.3 applies to ...