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: ...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: ...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: ...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: ...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: ...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: ...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 ...

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...