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