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...