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: ...from plaintiff's medical care providers. There was no discussion of plaintiff's vaccination status or comorbidities. Plaintiff ‘s ex parte application for a protective order was also not supported by any relevant declarations and was recently denied. The defendant has assured plaintiff that the conference room will accommodate distance between the deponent and other persons. Masks will be worn when persons are not speaking. No good cause was sh...

Excerpt: ...ime period of 1/12/2019 through 6/9/21] and 17.1 [facts underlying response, identity and description of documents to all responses not an admission to request for admission] is granted in part. The reply contends that neither the original, nor supplemental responses were verified. The responses shall be verified within 15 days from service of the notice of ruling. (Responses contained objections and some fact specific answers. Case law has held ...

Excerpt: ...aintiff's vehicle was T-boned by a vehicle driven by defendant Lopez. The city asks this court to sustain its demurrer to the complaint without leave to amend and to dismiss this complaint against the city with prejudice on the grounds that on the face of the complaint, and existing state statutes, it can be found as a matter of law that the city of Hanford does not own, control or maintain Highway 198. (Goddard v Department of Fish and Wildlife ...

Excerpt: ...enter and it has within its ability the authority to determine the identity of any person who may have spoken with plaintiff about a refund or replacement under the Song Beverly Act. Further verified responses are due 20 days from service of notice of ruling. Plaintiff's motion to compel a further response to special interrogatories Plaintiff's motion to compel further verified responses to special interrogatories ##14, 26, 27, 40-45, 51-56, 57 i...

Excerpt: ...3 [disputed], #4-10.) The FAC at ¶20 and plaintiff's discovery responses alerted defendant to her claim that defendant's failure to inspect, maintain and replace the chairs it provided to visitors created the dangerous condition. This supports a claim under Government Code §835, subdivision (a), whereby a public entity will be liable for an injury caused by a dangerous condition due to a negligent or wrongful act or omission of an employee of t...

Excerpt: ...e only affirmative defense clearly summarized was the third. The defendant is ordered to provide a further verified response 20 days from service of notice of ruling specifying the facts behind the collective bargaining agreement affirmative defense, identifying the witnesses and documents relevant to this defense. Sanctions are not ordered. Plaintiff's motion to compel further responses to special interrogatories Plaintiff's motion to compel fur...

Excerpt: ...elt system (designed to remove hulls and trash from the product) was the sole cause of plaintiff's injury. (Campbell v Southern Pacific (1978) 22 Cal.3d 51, 56.) Opposition to the summary judgment motion was filed by both the plaintiff and cross-defendant Roman Electric (the entity that located and installed the emergency stop buttons on the conveyor belt system). It is undisputed that after McDowell designed, manufactured and installed the conve...

Excerpt: ...ervice representatives are trained to respond to consumer inquires for repurchase or replacement in California]. The burden objection is not specific to the document requests. Moreover, defendant failed to support its burden objection with facts as to the quantum of work required to produce the requested training materials, and why the requests are unduly burdensome in relation to the relevance of the requests. (West Pico Furniture Co v Super Ct ...

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