Excerpt: ...ies' father that Mark would sell to Randy after the estate was finalized and distributed by order of the court in a probate case. The complaint sought to enforce the agreement through breach of contract, specific performance, and breach of implied covenants of good faith and fair dealing. Mark's answer contained 28 affirmative defenses (including breach of contract by Randy, fraud, mistake of fact, mutual mistake, unilateral mistake). Mark's cros...

Excerpt: ... the court finds that the reduction of duplicate costs of litigation and discovery, and the need to avoid inconsistent results, supports the stay of the PAGA claims (which appear to be based on the same or similar employment practices to be litigated in the arbitration proceeding). ...

Excerpt: ...ed. Plaintiff admitted at her deposition that before her purchase of the subject vehicle on May 29, 2017, she did not see or hear any marketing materials from GM, she did not ever communicate with GM concerning any transmission issues, and she did not believe that GM ever concealed any information from her, lied to her, or misrepresented anything to her. (UMF 10, 1, 15, 17). A cause of action for negligent misrepresentation requires a positive as...

Excerpt: ...12.4, subd. (c), the board has 45 days to act on the claim. If the board does not act on the claim, the claim is deemed rejected. Under Government Code § 945.6 (a)(2), if notice of rejection is not given, a plaintiff has two years from accrual of the cause of action to sue. The original complaint herein was filed on October 2, 2020, a date less than two years from accrual of the cause of action. Because facts were alleged in the FAC asserting th...

Excerpt: ...rth Amendment to the trust, which is contrary to defendants' interpretation. (Estate of Williams (2007) 155 Cal.App.4th 197, 215 [In construing the writing, the court looked not only at the four corners of the document but also considered extrinsic evidence. “If the prerequisite testamentary intent does not appear from the face of the instrument itself,” the court wrote, “reference may be made to the circumstances of its execution, and the ...

Excerpt: ...Cal.4th 1, 12.) Any fraud or perjury alleged to have taken place within a civil suit may be addressed through jury instructions, or by other measures. (Id. at 11-13.) Defendant's motion to compel plaintiff's deposition; Plaintiff's motion to quash or modify plaintiff's deposition The court intends to set the deposition of plaintiff. The parties shall be prepared to discuss dates and whether the deposition will be by zoom, or some other means nece...

Excerpt: ..., 61-64) Plaintiff was following GPS map information on his cell phone. (UMF 11, 12.) As plaintiff was driving, he was looking from his cell phone in his left hand to the road. (UMF 11) Plaintiff was driving too fast for conditions. (UMF 13) Plaintiff did not successfully navigate a 90 degree turn in the private road, left the roadway and hit the tank. (UMF 13.) Plaintiff has sued defendants for liability based on negligence and premises liabilit...

Excerpt: ...s have not filed a motion to amend to date. (CRC 3.1324 [motion to amend requirements].) The plaintiff's failure to have insurance (if true) would also impact relevant discovery. (Civil Code §3333.4.) At present, however, the court is not in a position to find plaintiff's discovery outside the scope of proper discovery. (CCP §2017.010.) Alfred Perez has served verified responses before the hearing in substantial compliance. The motion to deem r...

Excerpt: ... insignificant, risk of injury when the property is used with due care in the manner in which it is reasonably foreseeable it will be used. Government Code §830.2 states a condition is not dangerous if the court after review of all the evidence most favorable to plaintiff determines as a matter of law that the condition was of such a minor or insignificant nature that no reasonable person would conclude it created a substantial risk of injury. T...

Excerpt: ...urity for the loan. The court is unable to determine from the pleadings if defendant lender participated in this fraud. The court is of the opinion that the merits of this motion to expunge lis pendens cannot be resolved without oral testimony. It is apparent that plaintiff was kept in ignorance about the foreclosure action and was even induced to pay over $27,000 in property taxes after the property had been lost in foreclosure. The defendant le...

Excerpt: ...arches in the presence of the 40 inmates and the defendants. (¶¶ 37, 40, 70.) It was alleged that these searches were only conducted when there was a transgender inmate present. (¶28) Specific intent to violate plaintiff's well established constitutional rights was alleged. (¶35, 39, 41, 42.) The strip searches made plaintiff a target for sexual violence and signaled to others that she could be sexually harassed without consequence. (¶34, 35...

Excerpt: ...nd considers itself a third party beneficiary of the agreement between the plaintiff and the Franchisee. The fact that the complaint names Denny's Inc as a defendant, but the agreement is not signed by a representative of Denny's Inc, does not preclude court resolution of the franchisee's motion to compel arbitration. (Boucher v Alliance Title Co (2005) 127 Cal.App.4 th 262, 271-273 [a nonsignatory of an arbitration agreement may compel its terms...

Excerpt: ...e documents are to be identified by the last four numbers of the employee's social security number (or other mutually agreed “unique qualifier.”) The parties are also to enter into a protective order to provide further confidentiality to these records. The court does not find merit to defendant's objection that this precertification discovery is premature. Defendant argues that this discovery should not be permitted until the conclusion of th...

Excerpt: ...ivery (or downloaded on a thumb drive and physically delivered to plaintiff counsel) at least 24 hours before the deposition is scheduled to commence. The documents are to be identified as responding to the specific category of document requested in the notice of deposition (## 1-48.). The parties shall be prepared to designate potential deposition dates at the hearing on the motion. The court intends to specify a deposition date at the hearing. ...

Excerpt: ...ions of law and fact that are common to the class. (Beckstead v Superior Court (1971) 21 Cal.App.3d 780, 784.) If there is a reasonable possibility the plaintiffs can plead a prima facie community of interest among class members, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation. (Tucker v Pacific Bell Mobile Services (2012) 208 Cal ...

Excerpt: ...ion for reconsideration was served by mail on petitioner on July 16, 2019 (Complaint ¶14.) The petition for writ of administrative mandamus was filed in this court on July 8, 2020. The demurrer is on the grounds that this writ petition is time barred under that part of Government Code section 19630 that provides, “Any petition for a writ challenging a decision of the board shall be filed within six months of the date of the final decision of t...

Excerpt: ...the privacy rights of its personnel and to deter any others from surreptitiously recording confidential conversations with personnel in the future. This purpose could have been achieved by handing over the prosecution of a potential violation of Penal Code §632 to the District Attorney. Attorney fees under CCP §12021.5 will only be awarded when private enforcement was necessary and public enforcement was not sufficiently available. (Collins v C...

Excerpt: ...mpanying plaintiff's government claim, or personal knowledge with respect to the mailing of the 8/6/2019 letter advising the claimant of the insufficiency of the claim and the requirement to submit a $25 filing fee. Defendant's motion for summary judgment is denied. A triable issue of fact exists if plaintiff sent the $25 filing fee with the government claim. (Plaintiff's additional fact ##1-5 and the declaration of the law firm's long-time paral...

Excerpt: ...jected to in the motion ( in part due to defendant's submission of the documentation supporting the costs requested). Both parties recognize that travel expenses to attend depositions are allowed under Code of Civil Procedure section 1033.5, subdivision (a)(3) (C). However, plaintiff objects to the hotel room expenses incurred before some of the depositions which were described as having been incurred for deposition prep. The parties are to meet ...

Excerpt: ...Jones. The severance for purposes of trial and discovery was discussed during the severance motion heard 2/24/20. The stay on Jones' case was due to the pending criminal prosecution. The order encompassed a stay on discovery directed to Jones. The defendant has failed to present persuasive evidence that Jones is a critical witness in the Weaver case, and that trial in the Weaver case cannot go forward without taking Jones' deposition. In terms of...

Excerpt: ...ication: Plaintiff's motion is denied on procedural grounds. 1) Plaintiff LLC lacks the requisite standing to initiate this case as it is currently plead, 2) The Declaration of Jerald Munn fails to comply with the necessary requirements for a declaration Page 5 of 5 executed in the State of California pursuant to CCP Section 2015.5. Based on the deficiency, any evidence supported by the declaration is inadmissible, 3) The Separate Statement of Un...

Excerpt: ...ractices, breach of fiduciary duty, intentional misrepresentation, promissory fraud, unjust enrichment, constructive trust, injunctive relief and declaratory relief. The action against the moving party defendant was dismissed on 8/27/20. The motion for attorney fees as costs relied on the Second Amended and Restated Partnership Agreement which contained an attorney fees clause as follows: “Should any litigation be commenced between the parties ...

Excerpt: ...cussions improperly included in the cross-complaint in violation of Evidence Code §1152. These paragraphs also set forth Patino's legal assertions in support of their claim to the disputed strip of land, but these legal arguments are not “ultimate facts” that are required to be alleged to state the causes of action asserted by the cross-complaint. (Code Civ. Proc. §425.10, subd. (a)(1) [a complaint shall set forth a statement of facts const...

Excerpt: ... limit the scope of time from 2010 to the present. The court finds this offer reasonable, given that Form interrogatories ## 11.0 and 11.2 go back 10 years from the present. Moreover, as noted by defendant, one plaintiff had an MRI of his spine in 2013 due to complaints of back pain with radiating pain down his body. This is a physical condition at issue in this case. The request for medical records relating to plaintiffs' physical conditions at ...

Excerpt: ...rified responses are due 15 days after service of notice of ruling. Plaintiff failed to respond to defendant's meet and confer attempts and plaintiff has not corrected or verified the responses that were provided. Defendant's request for sanctions in the sum of $1965 is granted. Defendant's motion to compel verified responses to economic litigation form interrogatories CCP §2030.030 (a )(2) provides that a party may ask any additional number of ...

Excerpt: ...not capable of judicial notice. (People v Jones (1997) 15 Cal.4th 119, 171 fn.17, disapproved on another ground in People v Hill (1998) 17 Cal.4th 800, 823 Fn1.) The traffic collision report was properly objected to on the basis of lack of relevance (Evid. Code §350), hearsay (Evid. § Code 1200) , lack of personal knowledge (Evid. Code §702), and lack of foundation (Evid. Code §702). Plaintiff's objection to the mental competency report from ...

Excerpt: ...not capable of judicial notice. (People v Jones (1997) 15 Cal.4th 119, 171 fn.17, disapproved on another ground in People v Hill (1998) 17 Cal.4th 800, 823 Fn1.) The traffic collision report was properly objected to on the basis of lack of relevance (Evid. Code §350), hearsay (Evid. § Code 1200) , lack of personal knowledge (Evid. Code §702), and lack of foundation (Evid. Code §702). Plaintiff's objection to the mental competency report from ...

Excerpt: ...ation and the correspondence between the parties is not supported by statutory or case law. Claimants set forth the amount of principal and interest in their timely claims to excess tax sale proceeds submitted pursuant to R&TC §4675. The County approved payment of the principal, but not the interest. Claimants are entitled to accumulated interest on the note; the interest did not become unsecured on the death of the trustor/obligor. (Huckell v M...

Excerpt: ...of negligence (duty, breach of duty, causation and damage) but also 1) actual or constructive knowledge of the peril to be apprehended 2) actual or constructive knowledge that injury is probably, as opposed to possible result of the danger and 3) conscious failure to act to avoid the peril. It is not just a mere absence of care, but a more positive intent to harm another or act with a positive, active and absolute disregard of its consequences. (...

Excerpt: ...ty on whose behalf the complaint was filed, nor does it specify facts to support plaintiff's standing to bring the complaint. The court sustains the demurrer for uncertainty and for lack of standing. (Cloud v Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1004.) The demurrer to the two- paragraph complaint is also sustained on the grounds that defendant has no obligation to produce documents under any of the legislation alleged i.e. the Publ...

Excerpt: ...mage to the real property may have been caused by the trespass and possibly also the market value cost of the water diverted from the Kings River. (Complaint at ¶9 alleged that the identified users of the Kings River included the District, but not Verboon or Van Groningen.) The court agrees with defendant that if the prayer in the complaint was to be amended, this would require responsive pleadings to the First Amended Complaint be filed, as wel...

Excerpt: ...k v Kirwan (1985) 39 Cal.3d 311, 318.) The court does not find that the underlying basis for the first three causes of action is a sham, or that the allegations set forth in ¶31 and ¶39 in the FAC are fatally inconsistent. Plaintiff alleged that his termination was substantially motivated by his perceived disability and/or engagement in protected activities. The emphasis in the FAC that the complaints about not receiving meal and/or rest breaks...

Excerpt: ...at only a writ of mandate may be brought to resolve this dispute are distinguishable. In the cases relied on by defendant, an administrative remedy existed which the court found had to be exhausted before the dispute could be brought before the court. Here, defendant conceded no such administrative remedy exists. The parties are in agreement that the standard of review of defendant's interpretation of the Vehicle Code §34501.2 is set forth in Ya...

Excerpt: ...dency of the litigation that party may recover only costs actually incurred by a party or in its behalf in prosecuting or defending the case.) The declaration of plaintiff counsel supports the finding that apart from the first appearance fee by Ceja, the remaining costs were the total costs incurred by all four defendants, three of whom remain in this litigation. The cost bill is reduced from $8,165.24 to $2,367.55. Plaintiff sought a reduction t...

Excerpt: ...lifornia Highway Patrol interpreting the statute and regulations to preclude plaintiff from relying on the longer hours of driving allowed for truck drivers of specialized farm products. Defendant concedes that there is no administrative procedure available to plaintiff to challenge defendant's interpretation as it applies to plaintiff's intra-farm silage operations (with occasional use of the highways to get to another part of the farm). Defenda...

Excerpt: ...on, which rendered her unable to perform her regular work duties. (UMF 26, 27.) The report described the condition as a permanent condition and stated it should be considered for permanent disability. (UMF 38.) At the same time plaintiff presented this report to her employer, plaintiff applied for social security disability. (Reply UMF 26.) Plaintiff was placed on paid leave for the 100 work days (five months), which was required under the school...

Excerpt: ...ween the attorney and the examining physician. (Gonzi v Sup Ct (Daily News Co. Ltd.) (1959) 51 Cal.2d 586, 589; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020 ¶ 8:1586 through 8:1590.) It is unclear if anyone other than the examinee is entitled to audio record the examination. This is because under the Gonzi case, either party had the right to have a court reporter present to record a physical examination....

Excerpt: ...ranted. The demurrer is sustained without leave to amend as to defendant Christopher T Fisher. Defendant Fisher was alleged to be the owner of the building where the law office is located. (Complaint ¶5) Fisher was not alleged to be an attorney, he is not registered as an attorney in California, and no facts were alleged that he took any action or failed to take any action that caused plaintiff damages. The demurrer for uncertainty is sustained ...

Excerpt: ...iable issue of fact that the trailer was defective or contributed to the motor vehicle accident in any way. (Reply Separate Statement Facts ## 4, 5, 7 Torres Deposition at pages 22 [when you work for yourself as a truck driver, how do you find work] 24-25 [language interpreter questions how to define rental of trailer, but response was Torres was renting trailer from Rivera and Torres owned the tractor] 26 [Torres did not always accept work from ...

Excerpt: ... to any further funds from the sale of his partnership interest in order to pay for his criminal defense. The court agrees with plaintiff that paragraph 6.1 exaggerates the partnership's “contingent liabilities” from the wrongful death action (17C0009). This litigation was stayed due to a motion brought by plaintiff. It was alleged that plaintiff was in the course and scope of employment with the partnership when the wrongful death occurred. ...

Excerpt: ...ff failed to timely file a government claim. This failure would preclude plaintiff from raising any state law tort claims, if leave to amend was granted. The FAC purports to be a complaint for violation of plaintiff's federal civil rights as a result of the alleged perjury by Officer Welch at his trial for driving in excess of the speed laws on a state highway. The perjury is alleged to have stemmed from the officer's assertion that a traffic and...

Excerpt: ...he continued hearing date. Plaintiff's motion to compel further responses was continued from 7/30/20. The same tentative ruling set forth below applies. The parties appear to be in agreement that defendant has set forth in verified discovery responses that: 1) defendant admits liability for the accident; 2) defendant admits having driven while intoxicated; 3) defendant admits she was convicted of one misdemeanor drunk driving charge stemming from...

Excerpt: ...t after the accident with plaintiffs. The discovery requests have been reviewed by the court with an aim at balancing the plaintiff's right to discovery against the defendant's right to privacy and the fact that at trial, it would be error to allow evidence of the circumstances of the accident, when defendant has admitted liability and the only issue is the extent of plaintiff's injury. ( Boler v Superior Court (1987) 201 Cal.App.3d 467, 472; Fue...

Excerpt: ...asserts that no claim has been made under the FEHA. Plaintiff agrees that the claim for conversion set forth in the 10th Cause of Action does not state facts sufficient to state a cause of action. (Voris v Lampert (2019) 7 Cal.5th 1141 [failure to pay wages due under the Labor Code does not support a tort claim for conversion].) The motion for judgment on the pleadings is granted without leave to amend as to the 10th cause of action. Given that p...

Excerpt: ...ts and manipulated data from the lab supervisor, Mr. Fleming. Labor Code §1102.6 sets for the burden of proof for recovery of damages under this code section. The plaintiff must demonstrate, by a preponderance of evidence, that the activity proscribed under 1102.5 was a contributing factor in the alleged prohibited action against the employee. The employer then has the burden of demonstrating by clear and convincing evidence that the termination...

Excerpt: ...e court makes the following observations: Defendant has represented and the court accepts that defendant has (or is willing to) set forth in verified responses to the discovery that defendant admits liability for the accident, that defendant admits having driven while intoxicated, defendant admits she was convicted of one misdemeanor drunk driving charge stemming from the accident with plaintiff, defendant asserts she has not been charged or conv...

Excerpt: ...has dismissed without prejudice defendant Ceja. The remaining defendants' motions for summary judgment are denied. Defendants' motions for summary adjudication as to each cause 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 is...

Excerpt: ...ched as an exhibit. The note allowed for a line of credit up to $81,000 and required minimum monthly payments of $75. The note provided that the final payment was due 10/10/16. Plaintiff cites authority that even though it was a sold out junior due to the foreclosure of the first lien on the property, it may still seek collection on the promissory note. (Bank of America v Graves (1996) 51 Cal App. 4th 607, 611.) The parties are in disagreement wh...

Excerpt: ...ement, breach of fiduciary duty in not properly representing the true value of the partnership assets] . These allegations are not necessarily inconsistent, or result in a finding that a complaint is a sham pleading. (Steiner v Rowley (1950) 35 Cal.2d 713, 718-719 [complaint may plead inconsistent causes of action/ or counts, if there are no contradictory or antagonistic facts].) The demurrer to the second cause of action for illegal and unfair b...

Excerpt: ...ions under Section 1102.5 are predicated upon an employer/employee relationship. See Cal. Lab Code § 1102.5. The relevant portions of the statute clearly indicate that the statute is meant to establish prohibited activity by employers, rather than individuals]; Jones v Lodge at Torry Pines Partnership (2008) 42 Cal.4th 1158, 1173 [Retaliation under the FEHA].) The demurrer to the 4th and 5th causes of action on the grounds of failure to file a t...