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: ...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...

Excerpt: ...se documents in support of its demurrer. The court sustains petitioner's lack of foundation objection to the note, deed of trust, and certificate of death and sustains the hearsay, improper opinion testimony, and matter not capable of judicial notice under Evidence Code §451 and 452 objections as to the letter. The court does not find merit to the argument that this court does not have jurisdiction of the dispute due to the absence of an adminis...

Excerpt: ...of proving that party's liability for the loss or damage. Here, the discussion of defendant's financial situation was in the context of why plaintiff reasonably believed that defendant intended to continue to discuss settlement of this class action lawsuit. The statements may be considered in this motion in accordance with Evidence Code §1120 (b)(2) [an exception to the mediation privilege is if it relates to an agreement to extend the time to a...

Excerpt: ...re due 10 days after service of the notice of ruling. The court has considered the submission of plaintiff's supplemental responses which were forwarded to opposing counsel on the same day the motions to compel further responses were filed. The offer to consider further responses made by defendant counsel related to answers without objections. (Letter dated May 12, 2020.) The supplemental responses for the most part continue to object to the requ...

Excerpt: ...that, “I was not impeded by security.” If the process server had an escort, it is likely this would be described in the declaration. Defendants also dispute the assertion that the process server served Jane Doe as a person “apparently in charge” in an office left of the secretary in what the process server believed were defendants' administrative offices. Defendants assert in a declaration from the casino's chief financial officer, that t...

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

Excerpt: ...ailing party under Civil Code section 1717. The enforcement of this judgment was resisted by Pinedale. Pinedale asserted illegality of the contract between the parties and made a rescission argument. The City of Fresno is a prevailing party in its suit to enforce the judgment. The city is entitled to its attorney fees and costs under Civil Code §1717, CCP 1032, CCP §685.070 (a )(6) and §685.040. The authority cited by Pinedale to the contrary ...

Excerpt: ...he subpoena noting that it was subject to criminal penalties for releasing tax documents without a court order or consent from the taxpayer. Defendant contends this was not an “objection,” so this motion, directed to plaintiff after plaintiff failed to respond to letters seeking consent, filed 67 days after the CPA letter is not barred by the 20 day time limitation. No other code section was cited in support of the motion. The court does not ...

Excerpt: ...rastate business is not being conducted by a foreign limited liability company when it takes actions in California to collect a debt. (Conseco Marketing LLC v IFA & Ins Services (2013) 221 Cal.App.4 th 831, 840 [the SSFMJA does not contain a requirement that a judgment creditor which is a foreign corporation or foreign limited liability company, such as judgment creditor here, needs to qualify with the Secretary of State as a precondition to invo...

Excerpt: ...eed of trust. Defendant's demurrer to the 4 th and 6 th causes of action brought by Khodadad on the basis of lack of standing is sustained. The FAC at paragraph 55 alleges that Khodadad lost his investment and equity in Cashera as a result of the alleged fraud and wrongful foreclosure. The sole authority cited by plaintiff in opposition to the demurrer is distinguishable. (Munger v Moore (1970) 11 Cal.App.3d 1, 8 [a successor in interest to prope...

Excerpt: ... injury suffered by plaintiff could have been caused by the x-ray equipment due to an issue with the sensor and/or the wire connecting it to the computer. Defendants objected to Dr. Smith's declaration on the grounds that it lacked foundation because Dr. Smith did not state he had examined the x-ray machine and because Dr. Smith merely speculated that there was a possibility the digital detector and its attachments could have been the source of t...

Excerpt: ...: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:106 at 9(i)-90.) The court finds that all parties stipulated that the code would be followed with reference to what would happen following the premature conclusion of plaintiff's deposition. (RT 104- 105.) CCP 2025.520 provides that the deponent has 30 days after notice by the deposition officer that the transcript is available to read, correct and sign the transcript. The deponent may �...

Excerpt: ...ve authority to accept service of process on behalf of the CHP. Accordingly, the motion to quash service of summons and complaint is granted. ...

Excerpt: ...oposed judgment submitted by the City of Fresno. Respondent objects to the court consideration of the City's motion for attorney fees and argues that the motion is premature. The court has no objection to continuing the hearing on the motion until after the statement of decision is filed and judgment is entered. (CRC 3.1700.) The parties may select a hearing on the motion. In the interest of expediency, the court has reviewed the pleadings of the...

Excerpt: ...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 a mechanic lien for the non...

Excerpt: ...must be established to support the heightened need for supervision before school and during recess as set forth in the minor's IEP due to the minor's “challenged motor skills, energy level and his tendency to lose his balance and fall when accidently pushed or fatigued.” The extent of the minor's disabilities before the fall will necessarily be part of the evidence at the liability phase of trial. Any prejudice to defendant from jury sympathy...