Excerpt: ... stored information, or tangible thing described in the deposition notice ' '[i]f, after service of a deposition notice, a [party-affiliated deponent] without having served a vaitd objection under Section 2025.410, fails to appear for examination." Under the Code, a party may serve a written objection to a deposition notice, specifying the error or irregularity at least three calendar days prior to the date for which the deposition is scheduled. ...

Excerpt: ...d and related torts) "in ordinary and concise language," and the test for adequacy is not absolute but whether the pleading as a whole apprises the adversary of the factual basis of the claim].) The general rule is that a plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The court treats the demurrer as admitting all material facts properly pleaded, but not contentions, dedu...

Excerpt: ...determine with any certainty which responses to production remain outstanding as of the date of this ruling and whether there is any need for any further order by the court in regard to such matters. To aid in the parties' discussions, the court—with the exception of Request for Production of Documents No. 5—rejects Plaintiff's contention that Defendant Hanfordidence fails to provide the requisite statement of compliance. Except for Request f...

Excerpt: ...[alleged by plaintiff] more likely than not'—that is, evidence that would prevent a finding of that material fact. (Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 242 [quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851].) The moving party must satisfy this initial burden before the opposing party must controvert anything. (Id. [quoting Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (20...

Excerpt: ...aims that the representative claims can successfully go forward. Given the Kim decision and the reasoning in Gavriiloglou, there are strong arguments presented why the California Supreme Court should find that plaintiffs retain standing to proceed with the representative PAGA claims. (Kim v Reins International California Inc (2020) 9 Cal.5 th 73, 91-92; Gavriiloglou v Prime Healthcare Management Inc (2022) 83 Cal. App.5th 595.) But if this case d...

Excerpt: ...nt sought an extension of time due to illness. Counsel sent an email on 8/30/22 extending the time to respond by three weeks (which plaintiff says meant three weeks from the August 17 due date, making responses due September 7, 2022) Plaintiff counsel sent an email on September 28, 2022 seeking responses and noting that “technically all objections have been waived.” Defendant served responses, which consisted only of objections, on September ...

Excerpt: ...nst the trust. (Powers v Ashton (1975) 45 Cal App.3d 783, 787; Han v Hallberg (2019) 35 Cal.App.5 th 621, 632 [a trust cannot sue or be sued or otherwise act in its own name, instead the trustee acts on behalf of the trust].) The complaint alleges all facts to state a cause of action for partition under Code of Civil Procedure section 872.230. The demurrer to the cause of action for an accounting is overruled. A co- ownership of real property was...

Excerpt: ...e contract between the parties is entitled “Indemnification by Owner for Hazardous Material Not Caused by Design-Builder.” This is the indemnification clause which forms the basis of Filanc's second cause of action for contractual indemnity. It is this cause of action that Lemoore seeks to strike in its motion brought pursuant to CCP §425.16. Lemoore's special motion to strike is denied. The second cause of action for contractual liability a...

Excerpt: ...mail archiving system (or a cloud storage) by IT without preservation of any emails sought by plaintiff, knowing this would compromise plaintiff's lawsuit. Here, plaintiff counsel sought emails, but did not take the precaution of sending a notice to preserve the emails. Defense counsel denies any knowledge about the city's IT decision to switch email archiving systems. Defense counsel met and conferred with plaintiff counsel about search terms an...

Excerpt: ...s to the declaration of Mike Casey. The court finds that the arbitration agreements signed by the four plaintiffs are not substantively or procedurally unconscionable. (Armendariz v Found Health Psyhcare Services Inc (2000) 24 Cal.4th 83, 114.) The agreements all preceded enactment of Labor Code §432.6 (effective 1/1/20), which is not applied retroactively. (Labor Code §432.6, subd (h) [ This section applies to contracts for employment entered ...

Excerpt: ... 415.10.) However, under section 415.20(b) of the California Code of Civil Procedure, service may also be accomplished, in lieu of personal delivery, by leaving a copy of the summons and complaint at the person's dwelling house or usual place of abode in the presence of a competent member of the household and subsequently mailing a copy to the place where the summons and complaint were left, also known as substituted service. (Id. § 415.20(b).) ...

Excerpt: ...possession issued on 5/9/2022. On 9/13/22, Defendant filed an ex parte application to set aside default and default judgment on the basis of excusable surprise, given that she was never served with summons and complaint. The court granted to motion at a hearing on 9/15/22 and ordered Defendant to file an answer within 5 days. Demurrer (filed 9/20/22) The complaint is based on a 3-day notice to pay rent or quit, but no notice is attached to the Co...

Excerpt: ...lso violates a duty independent of the contract arising from principles of tort law…… An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty].) In addition, the court sustains the demurrer to the second and third causes of action on the grounds that no actual harm has been alleged. There is a claim of excessive seepage, but no claim of crop loss. The inference is that the seepage...

Excerpt: ...terests of the Living Trust were assigned to Hanford Renaissance LLC. The Living Trust (even if it could be a party to a lawsuit), no longer has an interest in the real property in Hanford that was security for the loan. The court agrees with plaintiff that the Living Trust has no standing to file the proposed cross-complaint. (Johnson v County of Fresno (2003) 111 Cal App.4th 1087, 1096 [ once the transfer has been made, the assignor lacks stand...

Excerpt: ...leged in the complaint, or that may be judicially noticed. (Del E. Webb Corp v Structural Materials Co (1981) 123 Cal.App.3d 593, 604.) When determining the merits of a demurrer, the facts as alleged are accepted as true. (Ibid.) Workers compensation preemption is an affirmative defense that defendant must plead and prove and such conclusion may not be asserted based on non- existent facts, speculation and inferences. (Doney v Tombouratgis (1979)...

Excerpt: ... reduced the number of employees in this PAGA class by a third. The court at page 7 of its 3/16/22 order specifically ordered defendant to answer the previously ordered discovery responses as to “all current and former non-exempt hourly employees.” The court rejects defendant's assertion that plaintiff was required to file a motion to compel further responses by April 20, 2022, given the court order of March 16, 2022. Defendant recently filed...

Excerpt: ... have corrected the dangerous condition. (Gov. Code §835.) The complaint alleged that plaintiff slipped and fell on a wet floor that had been recently mopped. The employees were alleged to have mopped the floor during visiting hours, and failed to place warning signs of the wet floor. The court accepts these facts as true and finds that the TAC adequately alleged facts sufficient to state a cause of action under Government Code section 835. (Zel...

Excerpt: ...ne if some of the medical expenses incurred by plaintiff related to plaintiff's prior medical condition, and the report of defendant's IME, which discounted permanent damage to plaintiff's muscles or back. The court finds that the objections and answer were adequate responses to the interrogatory. Plaintiff's sanction request is denied. Requests for admission As to Defendant Vargas (Some of the questions have been summarized/ shortened) #5 asks d...

Excerpt: ...d with the motion to intervene].) Leave to file a complaint in intervention containing a caption naming intervenors as substituted class representatives is granted. Case law supports a motion to intervene by putative class members when the initially named class representative is found unsuitable. (La Sala v American Savings & Loan (1971) 5 Cal.3d 864, 872 [in the present case, the superior court did not find that plaintiffs were not, at the comme...

Excerpt: ...tives. On these facts, we conclude that dismissal of the action requires prior notice to the class]; Jaimez v Daiohs USA Inc (2010) 181 Cal.App.4th 1286, 1308 [ As leave to amend is routinely granted and because the class presented two new class representatives (in direct response to the trial court's concern regarding the adequacy of Jaimez as a class representative), we conclude the trial court abused its discretion in denying leave to amend].)...

Excerpt: ...ve not been resolved. In plaintiff's points and authorities at page 6, plaintiff has agreed to limit deposition category #4 to documents reflecting the number of 2018 Ford Fiesta vehicles repurchased or replaced by Ford under California's Lemon Laws (limiting the request from “any state or federal lemon law.”) Plaintiff also agreed to limit the request to repurchases or replacement due to similar warranty non-conformities as the subject vehic...

Excerpt: ...n order to recover under this code section, plaintiff must first prevail on her claim of discrimination or harassment. (Carter v Cal. Dept of Veteran Affairs (2006) 38 Cal.4 th 919. 925 Fn 4. ) The California Supreme Court has found that this code section describes a separate unlawful employment practice, rejecting the argument that an independent cause of action had not been stated. (Ibid.) This court overrules the argument that plaintiff did no...

Excerpt: ...laintiffs are simply requesting the addition of a survival claim for damages incurred by decedent before his death, such as personal property damages and medical expenses. Plaintiff's SAC is to be filed within 10 days of the court hearing. ...

Excerpt: ...o support the defense. (See's Candy Shops Inc v Sup Ct (Silva) (2012) 210 Cal. App. 4 th 889, 900.) If the plaintiff does not make this showing, it is unnecessary to examine the [defendant's] opposing evidence and the motion must be denied. (Ibid.) In connection with its summary adjudication motion, plaintiff did not present an expert opinion, or any other evidence contradicting defendant's affirmative defenses based on comparative negligence, su...

Excerpt: ... from 1/8/2018 until 3/14/2019 (1 year 65 days). Neither party discussed the relevance of the right to amend a pending PAGA case. (Labor Code §2699.3 (a)(2)(c) and the impact of the fact that this case had been removed to federal court soon after it was filed, remanded back to this court on 1/22/20, and then subject to a motion to stay brought by defendant that was to be heard in March of 2020, but was not heard and granted until 9/2/20. The sta...