Excerpt: ...ause 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 issue of fact if the daily sexual comments and frequent physical touching of plaintiff by Topete (8 to 10 times a day) was sufficiently pervasive and severe to constitute sex...

Excerpt: ...d to the complaint as an exhibit, and no facts were alleged or implied that the hospital offered a paid trainee position to plaintiff in its hospital science lab for the 2018 semester. All the communications in the email chain, obtained by defendant after meet and confer discussions with plaintiff, were between plaintiff and SJSU. The plaintiff presents an alternative theory of liability, but no facts are contained in the complaint to support a c...

Excerpt: ...ng papers at footnote 3 page 5 also asserted hospital is engaged in interstate commerce. (Patterson v Tenet Healthcare Inc (8th Cir 1997) 113 Fed 3d 832, 835-37 [FAA governs arbitration of disputes of employees involving interstate commerce [excluding maritime or railroad employees]; Willis v Prime Healthcare Services Inc (2014) 231 Cal.App.4 th 615, 626 [payments of Medicare or Medicaid funds are transactions involving commerce; receipt of Medic...

Excerpt: ... are persuasive that the process server could not have obtained service by serving Mr. Nolan at the address on the loan documents. Mr. Nolan denies being present at the alleged service address. Mr. Nolan denies being an agent for service of process for the company. There is no declaration from the process server to contradict these assertions. The few facts set forth in the process server's declaration of due diligence concerning the appearance o...

Excerpt: ...mplaint and cross-complaints. To the extent the declaration is based on information and belief, and not personal knowledge, it is inadequate to support the argument that severance for discovery and trial is needed to reduce the prejudice, delay and unnecessary expense to NSP3 (and Borga Steel) while at the same time not causing undue prejudice to the remaining parties. (Pelayo v JJ Lee Management Co Inc (2009) 174 Cal.App.4 th 484, 494 [key is if...

Excerpt: ...arent from the delay in filing. The court takes judicial notice of 17CM0213 in accordance with Evidence Code section 452, subdivision (d). Defendant was convicted of a misdemeanor drunk driving charge stemming from the accident at issue. Prior convictions were not alleged. The defendant was ordered to complete a first offender 3 month DUI program. This contradicts the allegation in the first amended complaint that plaintiff was a DUI repeat offen...

Excerpt: ...ffirmative defenses in defendant's 3/29/19 answer. Plaintiff's motion fails to address the statute of limitation defense. Due to the above defects, the plaintiff's motion for summary judgment did not shift the burden to defendant. The motion for summary judgment must be denied. (Rawlings v DM Oliver Inc (1979) 97 Cal.App.3d 890, 896.) ...

Excerpt: ...ity against a concurrent tortfeasor, 'there can be no indemnity without liability].; Civ. Code §2778 (2) [the person indemnified is not entitled to recover without payment thereof].) This applies to the first three causes of action in the cross- complaints for equitable indemnity, equitable apportionment, declaratory relief. The claims set forth in the cross-complaints in any event duplicate affirmative defenses in the answers of defendants/cros...

Excerpt: ...nahue v State of California (1986) 178 Cal.App.3d 795). The claim in Donahue was premised on the theory that the Department of Motor Vehicles negligently permitted an uninsured driver to take a licensing test. The complaint alleged that the testing officer failed to use due care in directing the operation of the vehicle. Donahue is distinguishable. A claimant need only include a general description of the loss, so far as it may be known at the ti...

Excerpt: ...facts requisite to a valid service].) Defendant has filed a declaration challenging the purported substitute service on the casino and the individual defendants on the basis of: 1) failure to supply details as to why the process server believed he had served a person apparently in charge in light of defendant's declaration that no person described by the process server was employed by defendant and could have been considered a person in charge an...

Excerpt: ...ve an action tried in the county of his or her residence unless the action falls within some exception to the general venue rule].) The motion to change venue based on CCP §397, subdivision (b ) is denied. The plaintiff has failed to allege facts to support a finding that there is reason to believe an impartial trial cannot be had in Kings County. (Nguyen v Superior Court (1996) 49 Cal.App.4 th 1781, 1791 [T]he prospect of jury trial is extremel...

Excerpt: ...led to credit for the restitution paid in the sum of $6000. CCP §1021.4 provides that in an action for damages against a defendant based upon that defendant's commission of a felony offense, for which the defendant has been convicted, the court may award attorney fees to a prevailing plaintiff. The court sua sponte takes judicial notice of 17CMS6083 and the transcript excerpts of the preliminary hearing and the sentencing hearing. The notations ...

Excerpt: ...ement provided any dispute was to be construed under Colorado law; there is no equivalent statute in Colorado; 3) by its unambiguous language, indemnity for defense costs is not precluded under Labor Code §3864. For the reasons discussed below, the court declines to consider the first or second argument as a basis for its ruling. Instead, the court finds that by its unambiguous language, Labor Code §3864 does not prevent a third party from seek...

Excerpt: ...should be taken into consideration in setting the date and conditions of the deposition.) No sanctions are ordered. ...

Excerpt: ...of 2019. The FAC alleged that a false and defamatory blacklist letter was placed in plaintiff's personnel file with the intent to prevent plaintiff from pursuing a career as a firefighter. It was alleged that the placement of this letter in plaintiff's personnel file without giving plaintiff the opportunity to challenge the facts alleged therein was contrary to defendant's written policy and procedures. The court finds that the discovery of the f...

Excerpt: ...drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, trial courts usually follow a three‐step analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movan...

Excerpt: ...oreign taxpayer in this state may be forfeited, if a taxpayer fails to file a tax return required by this part].) Plaintiff has not submitted any documentation which would rebut this inference. Instead, plaintiff argues that its suspended/ forfeited status was known before it renewed its sister state judgment and should have been raised within the 30 day period provided by Code of Civil Procedure section 1710.40, subdivision (b ). Plaintiff argue...

Excerpt: ...1048 (b) ]The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross–complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.] Th...

Excerpt: ...ill accept as true the proof of service that reflects service on that date. The court finds that the right to object was not waived by plaintiff. However, the court orders plaintiff to produce a privilege log as to any document in plaintiff's possession or control that is privileged as a result of work produce, attorney client privilege, which objection plaintiff asserted in response to requests ##76-81 and 83-92. The privacy objection made as to...

Excerpt: ... requiring electronic documents to be identified with respect to the request number, does not apply to the discovery motion presently before the court. The court agrees with plaintiff that the requests to produce documents ##25-27 related to “why you failed to timely perform obligations” under the three project contracts were argumentative. The court finds that by producing all documents concerning delays due to “severe weather impacts” o...

Excerpt: ...t exists if responding to telephone calls on plaintiff's days off was “required” by defendant employer. ( Cochran v Schwans Home Serv (2014) 228 Cal.App.4th 1137, 1145.) Plaintiff testified to receiving telephone calls of five minutes or so several times a week. The court has reviewed the additional plaintiff deposition excerpts, which reflect that plaintiff did not always answer the telephone call from defendant. Sometimes she would listen t...

Excerpt: ... complained they could not see. The lights were not turned back on. (FAC ¶ 12) Another danger was that there were no accessible walkways through the premises to a parking area for persons in a wheelchair. (FAC ¶15) A five to six inch lip between the gravel parking lot and street had to be negotiated by plaintiff. Plaintiff was forced to travel backwards in his wheelchair due to the fact it was the easiest way for him to maneuver through gravel....

Excerpt: ... fee could never be determined until after the patient is evaluated and for this reason, the law does not require a hospital to provide an estimate of the cost of treatment at an emergency room. (H&SC §1339.585.) The court has already found that the legislature has spoken as to the requirements of a hospital to disclose its charges for fees and services. (H&SC §1339.51.) Plaintiff concedes that she is not alleging that defendants failed to comp...

Excerpt: ...rino for injury to an employee of Collins Air. (Ex 5) The answer to the cross- complaint does not expressly raise Labor Code 3864 as an affirmative defense. The cross complaint does raise an affirmative defense of failure to state facts sufficient to state a cause of action. The motion for summary adjudication seeks an order that Collins Air is contractually liable for the defense costs incurred by Leprino. Summary adjudication of the duty to def...

Excerpt: ...the Cotton project. Notice was not given by Soligent to any lender. Soligent is not asserting a stop notice or claim against a payment or performance bond, or bringing any claim against a construction lender. No authority is cited that a supplier may not file a mechanic lien under these circumstances. Soligent supplied the solar panels installed by AHE on a residence owned by Cotton. As a material supplier, Soligent has a statutory right to file ...