Excerpt: ...ugh it is of concern to the Court that Defendant cites many cases not originally cited in its moving papers, denying Plaintiff the opportunity to meaningfully respond. These cases should have been cited in its original moving papers. The motion is denied. Defendant Segway, Inc. has failed in its burden to establish that there was ever an agreement between Plaintiff and Defendant to arbitrate; or that Plaintiff ever received the alleged agreement ...

Excerpt: ...d within 30 days of service of the complaint is permissive and not mandatory. In addition, it is in the court's discretion to consider the filing so long as the court's action does “‘not affect the substantial rights of the parties.'” Moreover, as the court concluded in Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 58‐59, “lack of timely service is waived when the party discusses merits despite its objection”, which Plaintiff has d...

Excerpt: ...(Mot. 6:1‐4.) In opposition, the City argues bifurcation would be improper because Plaintiff's claims of dangerous condition of public property against the two defendants are inextricably intertwined. The City also correctly points out that the issue of ownership and control is not as clear‐cut as argued by Caltrans. In response to a request for admission (RFA) asking Caltrans to admit it “controls” the accident location, Caltrans respond...

Excerpt: ...erence that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (§ 36, subd. (e).) This decision “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.) Factors to be considered include the condition of the court's calendar, dilatory conduct by the plaintiff...

Excerpt: ... issue, this case was transferred to Department S24. (See Minutes 3/30/21.) On November 24, 2021, Plaintiff filed this motion for summary judgment of its complaint. On December 14, 2021, while its MSJ was pending, Plaintiff file a motion for leave to file an amended complaint, which the Court granted on January 19, 2022. Now at issue is Plaintiff's MSJ. Defendant filed a timely opposition. Plaintiff filed a timely reply. Defendant's Request for C...

Excerpt: ...ute as to the latter but Plaintiff has met his burden as to the former. Defendant concedes that certain amounts are owed but that the amount of the lien is incorrect. Furthermore, “ * * * a lien claimant may include in the mechanics' lien an amount for the reasonable value of the labor, services, equipment, or materials furnished based on the owner's breach of contract, even if based on oral modifications to the contract.” (44 Ca Jur Mechanic...

Excerpt: ... a stipulated Protective Order which the parties have entered into and claim to have been filed with the Court on October 20, 2021. The Court record does not show such a protective order was ever filed by the parties or signed by the Court. TRULINE moves for (1) an order compelling Plaintiff Excel Packaging System, Inc. (EXCEL) to serve further responses to all 38 of the RFPs propounded by TRULINE on it and (2) an order compelling Cross‐Defenda...

Excerpt: ... Defendants' Reply Separate Statement as the summary judgment statute does not provide for a ‘Reply Separate Statement'. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. 2 Before Trial § 10:220.6, citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Renumbered Separate Statement: In the opposition to the separate statement, instead of citing additional material facts, Plaintiff renumbered the original facts from Defendants and ad...

Excerpt: ...ent, the proper surgical procedures, and medical supplies/devices (e.g., wheelchairs, cane), adequate food and water, and housed in an ADA compliant unit (¶¶62‐78, 109‐125). Defendants argue Plaintiff and/or Decedent have no evidence that the purported discrimination was because of Decedent's disability. Under both the ADA and Rehabilitation Act, the plaintiff must show the exclusion from a program was solely because of his disability. (Wei...

Excerpt: ...cific adverse actions were endured, and a causal link. In California the Legislature has determined employment without a specified term “may be terminated at the will of either party…” (Lab. Code, § 2922.) However, “an employer's traditional broad authority to discharge an at‐will employee ‘may be limited by statute ... or by considerations of public policy.' [Citation.]” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172....

Excerpt: ...ano only. The elements of a breach of contract cause of action are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731.) Defendants contend the first cause of action for breach of oral contract fails as to Arellano because no information is given as to the verbal agreement she specifically entered into with...

Excerpt: ...2, the Court, at defendant's request, granted a continuance of the hearing on Plaintiff's motion for a preliminary injunction. The Court did not, however, grant permission for any further briefs to be filed. On January 18 and 19, 2022, Defendant filed identical additional Reply briefs. In the exercise of the Court's discretion, the Court considers the Reply filed January 18, 2022. Notwithstanding this consideration, the Court grants the prelimina...

Excerpt: ...(1992) 6 Cal.App.4th 1266, 1271, 8 Cal.Rptr.2d 587, fn. omitted.) In a motion to compel arbitration, ‘the party seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any defense, such as unconscionability. [Citations.]' [Citations omitted] ‘In California, [g]eneral principles...

Excerpt: ...on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457, citing Gov. Code, § 815.) Government Code section 815, subdivision (a) provides: “Except as otherwise provided by statute: [P] (a) A public entity is not liable for Page | 2 an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” “In view of the fact that tort causes of action against pub...

Excerpt: ...date Hearing Date: January 11, 2022 Page 4 of 105 CVS26011922 I Introduction Petitioners, Save Our Forest Association, Inc., the Sierra Club, and the San Bernardino Audubon Society, seek a writ of mandate ordering Respondents, the County of San Bernardino and the County Board of Supervisors, to rescind approval for Real Party in Interest, Church of the Woods, to build a church and related facilities in the San Bernardino Mountains. Petitioners br...

Excerpt: ...covery responses, and in the exercise of the court's discretion, the Court considers the motion notwithstanding the defects. 2. The objections are all without merit. There is no evidence supporting the unduly burdensome objections and evidence is required to sustain such an objection. (W. Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.) The requests are also not overbroad and they seek relevant information since the requests are c...

Excerpt: ...uance of preliminary injunctions at any time before judgment upon a verified complaint or upon affidavits that show satisfactorily that sufficient ground exists. Nevertheless, a preliminary injunction is a drastic and extraordinary remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. (Mazurek v. Armstrong (1997) 520 U.S. 968, 972.) A preliminary injunction is appropriate if irreparable harm wi...

Excerpt: ...Code as required by PAGA. A copy of the notice is attached as exhibit 1. The 19 page notice is sufficiently detailed for pleading purposes. Plaintiff has standing to pursue claims under PAGA because she was allegedly worked at Kaiser and personally suffered one or more Labor Code violations. (See FAC ¶ 8, 28, 55.) 1 Defendant's request for judicial notice is granted. It does not affect the outcome of the motion. Page 3 of 3 CVS26011822 Identifia...

Excerpt: ...: 1. First Cause of Action for Breach of Contract: The motion is denied. The allegations are sufficiently alleged. 2 2. Second and Third Causes of Action for Negligent and Intentional Misrepresentation: The motion is denied as to the Third Cause of Action but granted as to the Second Cause of Action, with thirty days leave to amend. In the Complaint, Plaintiff Connelly alleges Defendant Sherman misrepresented that she would pay for the purchased ...

Excerpt: ... intentionally caused the flooding or plumbing issues—only that Defendant failed to keep the subject property in a habitable condition, and Defendant acted unreasonably in delaying the repairs with the recognition that Plaintiffs would likely suffer annoyance or discomfort while being unhoused for an extended period of time with their young children. (See, e.g., Stoiber v. Honeychuck, supra, 101 Cal.App.3d at p. 921; Erlach v. Sierra Asset Serv...

Excerpt: ... of Court, rule 2.550(a)(3) [stating sealed record rules do not apply to discovery motions].) Here, given what is at issue in the special interrogatory motion, the specific names are not necessary for consideration of the motion and the names should have been redacted. Plaintiff could have just provided a description of the exhibits as providing lists of names and the number of names. The Court orders Exhibits 1 and 2 attached to Eric J. Goodman'...

Excerpt: ... The demurrer is overruled. The allegations that Plaintiff refused to discriminate when he was told that he was hiring too many black employees coupled with the removal of job duties is sufficient to allege Plaintiff Martinez engaged in a protected 2 activity and as a result, suffered from an adverse employment action– i.e. complaining to supervisors regarding instructions to engage in discriminatory hiring practices – and that as a result of...

Excerpt: ...e claim fails because Cohen did not take or retain Braswell's property for a wrongful use, with intent to defraud, or by undue influence. Issue No. 3: Braswell has not presented evidence to support a finding of punitive damages. Fourth Cause of Action – Promissory Fraud The Complaint alleges Sullivan and Cohen falsely promised Braswell that they would rebate 50% of their earned commissions over the lifetime of the policy to Braswell. But they n...

Excerpt: ...There is a split of authority regarding whether a demurrer may be properly sustained on the ground that a cause of action is duplicative. (Compare Palm Springs Villas II Homeowners Assn., Inc. v. Parth 2 (2016) 248 Cal.App.4th 268, 290 [demurrer properly sustained to cause of action for “breach of governing documents” on ground that cause of action was duplicative of cause of action for breach of fiduciary duty], with Blickman Turkus, LP v. M...

Excerpt: ...f he thinks it is not in the best interest of the class. These principles have not changed since the last hearing when the court denied intervention, and the court will not revisit the same points it made previously. Razo, however, does not rely exclusively on his previous grounds for intervention. He now argues that the proposed settlement is improper, based on Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858. 1 Ferra held that the term...

Excerpt: ...yment terminated before commencement of the PAGA period do not participate in the PAGA portion of a settlement. Class members who opt out of the class settlement still participate in a PAGA settlement if they worked during the PAGA period. The settlement agreement improperly identifies the PAGA aggrieved employees as the participating class members. (¶ 50.) Counsel should therefore provide estimates of the number of aggrieved employees and the t...

Excerpt: ...ues possession is not an issue, as Defendant has agreed to vacate the premises Page | 2 as expeditiously as controlling law and regulations permit. Defendant argues the issue of past rent due will be addressed on the Federal Action, requiring abatement of this action. A brief description of the inadmissible extrinsic evidence is necessary to understand Defendant's arguments. Defendant asserts its own former CEO, Bruce Hebets, entered into the lea...

Excerpt: ...e same thing. (Choi Declaration ¶ 5.) The Parks Declaration states later on, however, that actual costs incurred are $2,936.43. The declaration references Exhibit 3, but that seems to indicate $10,435.43 in costs. Counsel needs to clarify the amount of costs sought in the motion. If counsel seeks $3,500 in costs, the net settlement, after all deductions, is $8,166.67, not $9,166.67 as stated in the motion. The court assumes this difference is th...

Excerpt: ...ia law to reimburse its current and former employees for their work‐related business cell phone expenses; failed to provide compliant rest periods; Page 3 of 4 CVS26122221 failed to provide compliant meal periods and/or pay missed rest and meal period premiums; failed to issue accurate/complete wage statements; failure to pay all wages due upon termination to . . . the aggrieved employees.” After the 65 day period required to exhaust administ...

Excerpt: ...il October 15, 2019, when her employment was terminated based on allegations she shoplifted a $2.99 protein bar from an ARCO AM/PM convenience store. (Pet. 1, 7.) Page 5 of 13 CVS26122021 After a three‐day administrative hearing, the hearing officer issued a written, advisory report stating the City failed to carry its burden of demonstrating good cause for Petitioner's termination and further stating Petitioner should be reinstated and made wh...

Excerpt: ...rden of proof in showing that Plaintiff's Motion for Relief for Mistake of Law or Fact was frivolous, without factual or legal merit, and was filed primarily for improper purposes to delay this action and harass Defendant in violation of Code of Civil Procedure section 128.7. Initially, Plaintiff filed an Ex Parte Application to Vacate Judgment which was denied, without prejudice, on March 23, 2021 as there was no judgment on file with the Court....

Excerpt: ...0 a.m. in Department S29. The trial attorneys shall personally appear at the TRC – no court call. The trial document exchange is on or before March 31, 2021 (which is a non‐appearance date) and the trial documents filing date is April 11, 2022, except that motions in limine shall be filed and served in accordance with the local rules. The parties are ordered to comply with the Court's Trial Setting Order which is attached to this Order and wi...

Excerpt: ...ium. Given the nature of the work in the hospital caring for patients, defendant had no means to know that a meal or rest break was missed or interrupted unless a premium was requested. Plaintiffs acknowledged that requesting a premium was the only way defendant would know that a premium was due. Plaintiffs made requests for premiums, and uncontradicted evidence showed that every time they requested payment of a premium, defendant paid them. Ther...

Excerpt: ...ccurred while Jermane was crossing Coalinga Rd from North to South on the east side of the intersection with Cahuenga. UF #2 (undisputed). 1 Defendant repeats some of the facts with a different fact number. The first fact number used is referenced herein. In 2018, the school had two pick‐up/drop‐ off sites on the campus. The third site was for bus use only. The school does not have any designated drop‐off sites off‐campus. The first dismi...

Excerpt: ...reduction is approximately $130. Counsel has not addressed why the class size estimate was so far off or how the reduction still results in a fair settlement. 2. The request for a 35% fee award is not supported, especially in light of the substantially smaller per class member share due to the unanticipated increase in the class size. If the court approves the settlement, the court will award a fee of one‐third of the gross, or $75,000.00. 3. T...

Excerpt: ...ng parties are the prevailing parties entitled to an award of fees. Absent such a contract, fees can only be awarded in connection with the defense of the claim for misappropriation of trade secrets. Trade Secrets: Under Civil Code section 3426.4, an award is available to a prevailing defendant if the claim was made in bad‐ faith. A lack of evidence to support the claim can satisfy the standard. The court granted the moving parties' motion for ...

Excerpt: ...action are based upon allegations that Explorer breached its duty to provide the Hendersons a defense in the underlying lawsuit brought against them by Blackburn. The causes of action are also based upon Explorer's failure to settle the underlying case within the policy limits. Both causes of action are governed by the four‐year‐statute of limitations under Code of Civil Procedure section 337, subdivision (a). As argued by Plaintiffs, an acti...

Excerpt: ...chez”) operated a Mexican Restaurant in one of the restaurant spaces at the Subject Property. (UMF, #9.) On November 4, 2020, MG Petroleum caused a 30‐day notice to quit (“30 Day Notice”) to be served on Sanchez based on its understanding that the fixed term lease expired on October 31, 2019 and the parties entered into a month‐to‐month tenancy. (UMF, #14.) On or around January 14, 2021, Sanchez filed a verified answer to the Unlawful...

Excerpt: ...ated evidentiary objections. (Hartwell Corp. v. Superior Court (2002) 27 Cal. 4th 256, 279 fn.12; Jolley v. Chase Home Finance, LLC (2013) 213 Cal. App. 4th 872, 889 [“no ‘official web site' provision for judicial notice in California”].) 2 Defendants' Evidentiary Objections: 1‐14. “Facts” ‐ Overruled. Separate statements are not evidence. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) Because undisputed f...

Excerpt: ...ulate the amount each aggrieved employee would receive per pay‐period worked, a more accurate measure of fairness than the average receipt. Some employees may have worked only a few payperiods; others for the entire period. The proposed deductions are excessive. Usually, an attorney fee of one‐third of the gross is appropriate under the common fund doctrine, but under the circumstances of this case, where the resulting net is so small, this s...

Excerpt: ... overruled) or the motion to strike (which the court denied) was brought in bad faith or was frivolous, as defined in the statute (totally and completely without merit). 1 Defendants Harbor Development Disabilities Foundation, Inc. and Eastern Los Angles Regional Center for the Developmentally Disabled, Inc., filed notices of joinder in the demurrer filed by Inland Regional Center. Page 2 of 7 CVS26120821 2. Demurrer by Inland Regional Center The...

Excerpt: ...urred on November 19, 2018 and, as a result of her injuries, Grdjan filed suit on September 3, 2020, against CSU's Board of Trustees and TK Elevator Corporation (TK), though the pair were erroneously sued under different names. Through the operative first amended complaint (FAC), which was filed on November 24, 2020, Grdjan asserts claims for dangerous condition of public property and negligent infliction of emotional distress, both of which esse...

Excerpt: ...8, 11, 14, 20, 27, 28, 34, 35, 36, 391 , 40, 44, and 45. The objections are overruled. The responses, which were provided subject to the objections, are evasive. While every employee (over 4,600 in over 200 1 The separate statement misquotes Special Interrogatory 39. The interrogatory actually asked: “IDENTIFY all similarly situated employees who YOU content BSRO owes unpaid overtime.” Page 2 of 2 CVS26120721 business locations according to d...

Excerpt: ...dquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 251‐ 52.)1 In other words, generally, the court determines the enforceability of an arbitration agreement. (Ajamian v. CantrorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781.) Under the California Arbitration Act (CAA), the same is also true, i.e., generally, the court determines whether an arbitration contract exists and is enforceable. (Chin v. Advanced Resh Concepts Franchise Corp. (20110 194 ...

Excerpt: ...e on appellate court's own motion].) 2. Judicial notice is taken of Exb. 4, the google maps printout. (See United States v. Perea‐ Rey (9th Cir. 2012) 680 F.3d 1179, 1182, fn. 1 [finding “Google map” to be a source “‘whose accuracy cannot reasonably be questioned'”]; Evid. Code, § 452, subds. (g), (h).) 3. Judicial notice is denied for Exb. 5‐7, printouts from the U.S. Post Office Website. (See Jolley v. Chase Home Finance, LLC (20...

Excerpt: ...Justino Montiel I. DISCUSSION Hitachi moves to strike Plaintiff's punitive damage allegations, as well as a list of prior product liability lawsuits regarding alleged defects with the nail gun. I recommend the Court deny the Motion to Strike. A. Statement of Law “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof….” (Code Civ. Proc., § 4351 .) “The cou...

Excerpt: ...disputed Material Facts and Separate Statement of Additional Facts in opposition to the MSA filed by Cohen. Plaintiff informs the Court that after the Court continued the hearing date on Cohen's MSA to October 27, 2021, Plaintiff took the deposition of non‐party witness, Chris Ebert (Ebert), the controller and chief financial officer for Plaintiff's company between November 2016 and August 2019. Ebert testified he was present at several meeting...

Excerpt: ...g, not the contents of the declaration, which could be true or false. The act and date of filing is not demonstrated to be relevant. Procedural Objection Petitioner's argument that the demurrer is procedurally defective because the demurrers were not set forth in a separate document is without merit. The “Notice of Demurrer and Demurrer” clearly and unambiguously delineates the grounds for the demurrers. Third Cause of Action Petitioner alleg...

Excerpt: ...l date would not change the deadlines absent a stipulation of the parties. This deposition and motion would be untimely under these rules. Due to the pandemic, however, Code of Civil Procedure section 599, subdivision (a), was enacted, extending all deadlines for the same length of time as a trial continuance, although the court could rule otherwise. Douenga filed a Notice of Ruling on the ex parte application to continue the trial, indicating th...

Excerpt: ...erence with all parties and the Court pursuant to CCP 2016.080. The purpose of the conference is to try and resolve the discovery issues without the necessity of a motion. At the conference, the issues of the discovery dispute will be discussed as well as possible referral of the case out to Judicial Reference (Hereinafter JR). Timely objections to JR will be heard at this time only, absent change in circumstances ( Be prepared with appropriate f...

Excerpt: ...of the settlement agreement. The Court is authorized to enter judgment pursuant to the settlement regardless of whether the settlement's obligations were performed or excused. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1184‐1185.) Regardless, Plaintiff filed this motion to enforce payment of the settlement funds, which was undisputedly overdue. Defendant's failure to respond to Plaintiff's counsel's emails prior to the motion, and its prompt ...

Excerpt: ... (1994) 29 Cal.App.4th 482, 488; Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1808 [offended party may move in the arbitration proceedings to terminate for failure to pursue arbitration claim with reasonable diligence]; Blake v. Ecker (2001) 93 Cal.App.4th 728, 737‐738 and fn. 8, overruled on a different ground in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 fn. 5 [“Defendants' only avenue for redress when plaintiff fa...

Excerpt: ... The request for judicial notice is granted except as noted below: Exb. 3. The Filamore‐Angel original complaint. Relevance. Exb. 9, 12. The LWDA notices. Relevance, as explained below. (If they were relevant, judicial notice would be limited to the dates of filing and the statements made for notice purposes, but not for the truth of those statements.) 1 Page 5 of the complaint is missing, though defendants reference allegations regarding the t...

Excerpt: ... With a class size of 33, each class member would have received, on average, $6,451.91. With a class size of 57, the average receipt is reduced to $3,735.31, a 42.1% reduction. The court is concerned about the fairness of the settlement for the class in light of the substantially lower payments. On the other hand, no class member has opted out or objected. Counsel should be prepared to address the overall fairness of the settlement. Especially in...

Excerpt: ...‐558.1), or any provision regulating hours and days of work within any order of the Industrial Welfare Commission (IWC). Similarly, section 1197.1, subdivision (a), provides for a civil penalty against any Page 3 of 4 CVS26112221 employer or “other person acting either individually or as an officer, agent, or employee of another person,” who pays or causes to be paid less than the minimum wages. The California Supreme Court has held that se...

Excerpt: ...onvention was required. Plaintiff has demonstrated that the requirements of the Hague Convention need not be followed in this instance. (See Kott v. Superior Court (1996) 45 Cal.App.4th 1126.) In the reply, Defendant Zhang argues that Plaintiff Chu did not exercise reasonable diligence in attempting to obtain her address. Zhang asserts Chu never asked her counsel for her address, but this is not established in any declaration. In the supplemental...

Excerpt: ...of the trial court. [Citations.] And courts are much more critical of proposed amendments to answers when offered after long unexplained delay or on the eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the other party. [Citations.]' [Citation]” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; see also WEIL & BROWN, CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL [The Rutter Group] ¶6:643). W...

Excerpt: ...ivil Procedure sections 430.41 and 435.5 prior to filing their Page | 2 demurrer and motion to strike. Attorney Garrett B. Stanton states that he sent several email correspondences to Plaintiff's counsel in an attempt to schedule a time to telephonically meet and confer regarding Plaintiff's FAC. Mr. Stanton also made two telephone calls to Plaintiff's counsel in order to meet and confer, but he was told that Plaintiff's counsel was not available...

Excerpt: ...y for recovery, versus a new factual claim [Hagan Decl. at ¶27]. No demonstrated prejudice lies by allowing its addition. Third, while collection of a possible judgment is not a justified basis for adding decedent's wife as a party, the proposed allegation that Janet Thompson was aware, accepted, approved, and benefited from the acts and services rendered1 implicates Family Code § 914, subdivision (a), which states: “[A] married person is per...

Excerpt: ...pare Stephens Compl. ¶¶16‐67, with Leach Compl. ¶¶15‐66.) Plaintiffs even copy/paste allegations regarding the evidence needed to prove both cases. (See Stephens Compl. ¶53; Leach Compl. ¶52.) [“Evidence for DEFENDANTS' indifference for the acuity levels of the FACILITY'S patient population can be found through a comparison of the average registered nurses to resident ratios in California facilities verses the FACILITY.”].) 2 While ...

Excerpt: ...rty for payments Travelers has made, those rights are transferred to Travelers. Subject to a reservation of rights, Travelers agreed to Fernrock Page | 2 under the policies against the claims made in this action. Among other things, Travelers reserved its right to seek reimbursement of defense expenses from potentially liable third parties. To date Travelers has incurred in excess of $370,000 in defense costs on Fernrock's behalf. To date, Copp h...

Excerpt: ...ommunity Solutions, dba Youth Build Inland Empire (2) Defendant Richard Wallace (3) Defendant Dee Goins Meet and Confer Requirement‐ Demurrer Under Code of Civil Procedure § 430.41, before filing a demurrer, the objecting party shall meet and confer with the opposing party in person or by telephone for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. During the meet ...

Excerpt: ...1242, 1249.) A court may grant a continuance upon an affirmative showing of good cause. (CRC, Rule 3.1332(c); Lazarus, supra, 64 Cal.App.4th at p. 1249–50.) Page | 2 Whether to grant a continuance generally rests within the trial court's broad discretion. (Color‐Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246 (“The trial court has discretion in ruling on requests to extend ...

Excerpt: ...atement was filed by Plaintiff in support of the motion but again it was not in compliance with the Court rules which require that all the text of all responses (original and supplemental) be included and the reasons justifying compelling further responses. The reason for this is so the Court does not has all of the information in one document. Nonetheless, the Court will rule on the motion but 2 admonishes Plaintiff's counsel that any further vi...

Excerpt: ...nt practice association (“IPAs”) and medical groups are not intended to be in this lawsuit (“Excluded Claims”)[.] (June 1, 2020 Stipulated Order at p. 1:10‐ 12 [Blue Cross' RJN, Exh. A; Exh. D to Glarum Decl.; and Exh. E to Jazaeri Decl.].) A stipulation is binding between the parties thereto unless illegal or contrary to public policy. (Tanner v. Title Ins. & Trust. Co. (1942) 20 Cal.2d 814, 821; Hehr v. Swendseid (1966) 243 Cal.App. 1...

Excerpt: ... at least sixteen court days before the hearing). As for the claims of plaintiff Neri, the court imposed a deadline for defendant to file a responsive pleading of September 10. Plaintiff contends the motion to compel arbitration is untimely, because it was not filed by September 10. Plaintiff has confused the two deadlines. Defendant's responsive pleading to plaintiff Neri's claims was timely filed on September 10.1 The motion to compel arbitrati...

Excerpt: ...responsive statements. Defendant has failed to comply with its discovery obligations under the Code of Civil Procedure and this court's prior orders, by asserting frivolous objections, by providing responses that are ambiguous and not in compliance with the Code of Civil Procedure, by continuing to assert objections after the court overruled them, and by failing to timely produce all responsive documents in response to the court's orders. The ten...

Excerpt: ..., at least sixteen court days before the hearing). As to plaintiff Neri, the court ordered that a responsive pleading would be due no later than September 10, 2021. Defendants filed a demurrer and a motion to strike on September 14, 2021, four days after the deadline. Plaintiff, however, does not appear to object to the untimely filing of the demurrer and motion to strike and no prejudice is shown. The filings were compliant with the requirements...

Excerpt: ...d to propose a narrow sealing order. It may be that portions of Schedule A to Exhibit A and Exhibit C (e.g. dollar amounts) are appropriate to seal, with redacted versions filed publicly. Motion to Compel Arbitration of Individual Clams and Dismissal of Class Claims Plaintiff does not dispute that an arbitration agreement exists, nor does she contend that is substantively or procedurally unconscionable. Rather, she contends that the agreement is ...

Excerpt: ...rises, LLC and YTC Investments, LLC a. Discussion Plaintiff City seeks an order of prejudgment possession of the property it seeks to condemn for a permanent easement and a temporary construction easement for a period of twelve months. Defendants THM Enterprises and YTC Investments (for this motion, “Defendants”) oppose the motion, asserting Page | 2 resolution of necessity does not establish the right to take, and the City failed to make the...

Excerpt: ...s inappropriate, especially for a relatively small settlement such as this. Many courts do not award any “incentive” awards in “PAGA only” cases . This court views a maximum $5,000.00 award as appropriate. (Reducing the incentive award brings the penalty amount to $79,847.60.) 3. Counsel has provided only estimates for the number of aggrieved employees (109) and the total number of pay‐periods for all aggrieved employees collectively (1...

Excerpt: ...leads the following class: All current and former non‐exempt employees paid on a salaried basis and misclassified as “exempt” who worked for any of the Defendants within the State of California at any time during the period from March 13, 2015, to final judgment. Lollicup moves to deny class certification. Rules of Court, rule 3.767(a)(3), provides that in the conduct of a class action, the court may require the pleadings be amended to elim...

Excerpt: ...ois v. Goel (2005) 35 Cal.4th 1094, 1108: “We agree that it should not matter whether the ‘judge has an unprovoked flash of understanding in the middle of the night' [Citation] or acts in response to a party's Page 2 of 7 CVS26101921 suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.…” (See also In re Marriage of Herr (2009) 1...

Excerpt: ...ggs, and (5) Charles Hohman (collectively cross‐defendants). The City also asks the court to deem the action moot because cross‐defendants are no longer in possession of the property where an unlicensed marijuana dispensary was operating, and the nuisance has therefore been abated. After extensive litigation, the court issued a preliminary injunction to prevent the operation of a marijuana dispensary on the property, which the Court of Appeal...

Excerpt: ...nst him. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 [citations omitted].) 2. Demurrer to First Cause of Action ‐ Fraud: The demurrer is overruled. The allegations are sufficient as against a demurrer. 3. Demurrer to Second Cause of Action ‐ Negligent Misrepresentation: The demurrer is overruled. The factual allegations regarding the misstatements and omissions are sufficient for the fraud cause of action, and Defenda...

Excerpt: ...nses to most of the RFPs, RFAs, and Form Interrogatories. (Exh. 11 to Cabada's Decl.) As supplemental responses were served, this motion is moot as to (a) RFPs #20‐21, 23, Page 2 of 4 CVS26101421 42, 45, 47, 51, 74, and 77, (b) RFA #19, and (c) Form Interrogatories #200.6, 201.1, 201.4, 201.5, 201.6, 207.1, 214.1, 215.1, 216.1, and 217.1.1 The only requests remaining at issue are RFP #5 and # 38, RFA # 17, and Form Interrogatory # 214.2. RFP # ...

Excerpt: ...) 40 Cal.App.4th 608, 615; Jones v. Otero (1984) 156 Cal.App.3d 754, 759. On the one hand, despite arguably being aware he filed a lawsuit that would require his participation, Plaintiff Jordan has gone quiet. His silence leaves Target with no means to defending against the lawsuit. And his failure to 2 respond to his Counsel could show a lack of diligence that can equate to willfulness. On the other hand, due to Jordan going quiet, and no eviden...

Excerpt: ... term “affecting commerce,” which is a term of art that ordinary signals the broadest permissible exercise of Congress's commerce clause power. (Citizens Bank v. Alafabco, Inc. (2003) 439 U.S. 52, 56.) Defendant bears the burden of demonstrating FAA coverage by declarations and other evidence. (Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101; Woolls v. Superior Court (20050 127 Cal.App.4th 197, 213‐ 14.) Here, t...

Excerpt: ...ness name for defendant. Plaintiff is mistaken. While the evidence is sparse, it is sufficient. Defendant's Human Resources (HR) manager, Esther Magallanes, submitted a declaration authenticating the arbitration agreement. (Magallanes declaration ¶ 14.)1 She declares that plaintiff “became employed by Office Star on December 9, 2016 to work as a Shipping Clerk for Office Star's Elm warehouse in Fontana.” Magallanes worked in the office that ...

Excerpt: ...tiff alleges Defendants were strictly liable, or were negligent, reckless, unreasonable, and Page 2 of 8 careless in their design, manufacture, supply, installation, inspection, repair, renting, or leasing of the product. Plaintiff filed her Complaint January 27, 2021, asserting causes of action for General Negligence and Products Liability. On March 25, 2021, Canedo was personally served with the Summons and Complaint at 144 E. Arbeth Street, Ri...

Excerpt: ...orm complaint alleges two causes of action: (1) motor vehicle; and (2) general negligence. Plaintiff seeks punitive damages. Plaintiff filed a first amended complaint (FAC) on August 17, 2021 alleging the same causes of action and also seeking punitive damages. On August 24, 2021, Defendant filed this motion to strike punitive damages. Discussion Defendant has moved to strike any references to punitive damages within the exemplary damages allegat...

Excerpt: ...ROUND Plaintiff's First Amended Complaint From 2011 to 2018, Plaintiff Regina Mendoza (Plaintiff) was employed by Defendants Loma Linda University Shared Services, Loma Linda University Medical Center, and Loma Linda University Medical Center – Murrieta (Defendants). Plaintiff's job performance was exemplary, and she was repeatedly promoted, which resulted in her attaining the position of Director of SCM Purchasing. (¶¶ 13‐14, 16, 21.) Plai...

Excerpt: ...utor/trustee of the estate of Ascension Garcia (Decedent), and alleges causes of action for (1) fraudulent intentional Page 2 of 36 misrepresentation; (2) breach of contract; and (3) intentional infliction of emotional distress. The complaint alleges wrongdoing with respect to the burial of Decedent, who was Plaintiff's mother, in the wrong plot. On August 4, 2021, Defendant filed the instant demurrer and motion. DISCUSSION Statement of the Law D...

Excerpt: ...Roxana Yonessi: Sustained. Declarations by the moving party's counsel as to essential facts are generally objectionable and inadmissible as hearsay, except where the lawyer somehow has personal knowledge of the facts. (Star Motor Imports, Inc. v. Sup.Ct. (Shake) (1979) 88 Cal.App.3d 201, 204.) A verification cannot be based on information and belief. (Id.; cf. Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 236 [declaration in suppor...

Excerpt: ...ontext and applicability are important factors which the Court cannot determine by motion. Motion in Limine #11 – Exclude reference to Publicized Accounts of other sexual assault incidents: How is this different from Motion in Limine #8? As with that motion, this motion is denied. This motion is denied. It is not specific enough as to what evidence Defendants seek exclusion of. This motion requires the Court to rule in a vacuum and perhaps even...

Excerpt: ...ant's wooden deck and suffered injuries. Plaintiff alleges the following causes of action: (1) general negligence; and (2) premises liability. On March 13, 2021, Plaintiff filed an Amendment to Complaint naming Real Estate FTL as Doe 1. Now before the Court is Defendant's motions to compel further responses to Form Interrogatories, Set Two, and Request for Admissions, Set One. At issue are Form Interrogatory No. 17.1 and RFA Nos. 5 and 9. Plainti...

Excerpt: ...Stanford University School of Medicine and the Vice Chair for the Department of Emergency Medicine at Stanford. He states he is familiar with emergency medical practices and procedures including foot injuries such as suffered by Shelton. Dr. Shen states he has reviewed Shelton's medical records and imaging studies from Adventist Health Selma (AHS) and RCH. Dr. Shen states Shelton presented to AHS' Emergency Department on July 11, 2019 for complai...

Excerpt: ...those related to the alleged medical malpractice, the Complaint also contains allegations indicating defendants were negligent in failing to properly ensure the character, quality, ability, and competence of the individuals treating patients that as a direct and proximate result, plaintiff suffered injuries. When these allegations are viewed in the context of plaintiff's claim that she should have been treated rather than discharged, a valid clai...

Excerpt: ...llegations are not uncertain and are sufficient for purposes of demurrer. 3. Demurrer to First Cause of Action – Breach of the Implied Warranty of Habitability: The demurrer is overruled. There is no requirement in this cause of action that a landlord be given time to correct deficiencies and Plaintiff alleges notice and damages. (paragraphs 12 and 23). Knight v. Hallsthammar (1981) 72 Cal.3d 46, 55. 4. Demurrer to Second Cause of Action _ Brea...

Excerpt: ...or set forth the objectionable statement or material.” Objections may be made only to evidence. California Rules of Court, rules 3.1352 and 3.1354 both state they apply to “objections to evidence,” and Code of Civil Procedure section 437c, subd. (b)(5), also refers to “[e]videntiary objections.” Separate statements are not evidence. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) Because undisputed facts in a s...

Excerpt: ...ts for production. Page 2 of 14 Plaintiff M.D.L.F., a minor by and through his guardian ad litem, Melinda Fields, (“Plaintiff”) filed this personal injury action against Defendants Morongo Unified School District (“the District” of “MUSD”), Cindy Arrowood (“Arrowood”), and Diana Fisher (“Fisher”) (collectively, “Defendants”). On September 23, 2020, Plaintiff filed a Third Amended Complaint (“TAC”), which includes seven...

Excerpt: ... value. (See Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1148.) 2 Plaintiff's Request for Judicial Notice: The Request is denied. Decisions of the six district courts are not matters the Court can judicially notice the contents of and it is unnecessary to request judicial notice of California appellate decisions which the Court can consider independent of any request for judicial notice. Motion: The motion is denied. FCA moves to compel ar...

Excerpt: ... extent, what evidence will be presented and that issues are germane, which may not turn out to be the case. The Court reserves the right to exclude any such evidence upon proper objection during the trial depending upon what occurs at trial. The denial or grant of these motions is without prejudice. 2 As to any motion granted, the parties are ordered to refrain from conveying to the jury any of the evidence excluded without first obtaining permi...

Excerpt: ...ive First Amended Complaint (FAC) alleging the following five causes of action against defendants Lyft, Inc. (Lyft); John Doe Lyft Driver; and Alejandre: (1) Negligence (Against Lyft and John Doe Lyft Driver Only); (2) Negligent Infliction of Emotional Distress (NIED) (Against Lyft and John Doe Uber Lyft Only); (3) Negligent Hiring, Retention, Training & Supervision (Against Lyft Only); (4) Assault & Battery (Against Alejandre Only); and, (5) Int...

Excerpt: ...age 2 of 23 interrogatories. After Ashley Furniture sent an inquiry on July 30, 2021 and received no response, Ashley Furniture filed this motion to compel responses to form interrogatories and motion to compel responses to special interrogatories. Both motions request sanctions. On September 14, 2021, Nava filed oppositions to both motions indicating responses have now been served. Discussion Ashley Furniture has moved to compel responses to the...

Excerpt: ... the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof ...

Excerpt: ...nnot support his negligence cause of action; (ii) there is no admissible proof that Nguyen breached his duty of ordinary care and caused the subject vehicle collision; and (iii) based on the evidence, if Plaintiff was driving in a safe and reasonable manner, he would have had sufficient time to avoid the subject collision. Defendants further argue that however, due to Plaintiff's inattention and unsafe driving, he collided with the rear of Defend...

Excerpt: ... liberally construed so the Court will consider this and the remaining motions in limine brought by Defendant Esther Garcia (GARCIA). 2. The motion is granted. No evidence concerning the fact of the investigation of the California Commission on Teacher Credentialing (CTC) regarding GARCIA (including but not limited to, the complaint, investigation, investigative reports, findings, committee recommendations or administrative appeals) shall be ment...

Excerpt: ...ched to the Request for Judicial Notice filed September 13, 2021 but denies judicial notice of Exhibit I as irrelevant. 2 Demurrer to Second Amended Complaint: All demurrers are overruled. The elements of an infringement claim under California statutory and common law are plaintiff's earlier and continuous use of a trademark, defendant's subsequent use of a confusingly similar trademark, and likelihood of confusion in the minds of the public that...

Excerpt: ...e defendants knew there were intoxicated, aggressive, and dangerous patrons at the premises, but declined Mouton's request to call law enforcement. Defendants also failed to take any action to protect the safety of their patrons. Through the complaint filed on July 17, 2019, Mouton asserts causes of action for: (1) motor vehicle negligence against Does 90‐100, (2) general negligence, and (3) premises liability. Mouton also eventually name Leon ...