Excerpt: ...l briefing be filed and served according to Code. No further briefing has been filed and the Court interprets this as each party's request that the Court now decide the motion based on the prior pleadings filed. Motion: The motion is granted. Whether a defendant is subject to personal jurisdiction in the forum state involves two separate factors. Namely, (1) the basis for jurisdiction or the existence of a constitutionally‐sufficient basis for ...

Excerpt: ... if so, on what grounds. Coordination requires a finding that the cases are complex. Some courts designate PAGA cases as complex and some do not. The latter choice, however, is based more on an administrative rule for judicial assignment to accommodate judicial case loads, as opposed to a case‐specific analysis of complexity. In any event, no authority is cited for the proposition that the designation on the civil cover sheet is controlling for...

Excerpt: ...h 486 [holding arbitration was proper for claims against both the manufacturer and retailer under an arbitration provision with language the same as the one currently at‐issue].) The agreement is not unconscionable. The Fourth District Court of Appeal has taken the position that “[t]o describe a contract as adhesive in character is not to indicate its legal effect.... [A] contract of adhesion is fully enforceable according to its terms [Citat...

Excerpt: ...d failures to act—the alleged failure to maintain the hotel, failure to inspect and keep the hotel free of bed bugs, and failure to warn Plaintiffs the room being rented to them was infested with bedbugs. To hold that these allegations support the intentional tort of battery would be to greatly expand battery to include most negligence claims, as virtually all negligence injuries involve some sort of harmful or offensive contact resulting from ...

Excerpt: ...endant did not challenge that. No new cause of action is asserted in the amended complaint. Rather, plaintiff seeks to add factual allegations to support the existing causes of action. Defendant does not explain how standing that is already pled is lost by the amendment. Under the false advertising and fraudulent prong of a UCL claim, the named plaintiff must show actual reliance on the false advertisement or misrepresentation. (In re Tobacco II ...

Excerpt: ...ast Community Clinic (filed Nov. 30, 2021) 2021 Cal. App. LEXIS 992 as legal authority, not as evidence. Judicial notice is unnecessary and improper. Judicial notice is denied. Ruling on Evidentiary Objections: Sustained. Defendants submitted a declaration of Michele Carroll, a Human Resources manager, who testifies to material facts based on her review of email archive records and Plaintiff's employment records. Those records, however, have not ...

Excerpt: ...eged Ochoa separately subjected Plaintiffs to harassment based on their sex or gender, Defendant did nothing in response to their complaints, which ultimately resulted in their constructive termination. (¶¶ 9‐11.) Plaintiffs filed their Complaint August 4, 2021, asserting causes of action for: (1) Harassment (Hostile Work Environment) in Violation of FEHA Based on Sex; (2) Discrimination Based on Sex in Violation of FEHA; (3) Retaliation in V...

Excerpt: ...ees or supervisors under Labor Code section 1102.5. Plaintiff's Eighth Cause of Action for Violation of Labor Code section 1102.5: Both sides provide persuasive arguments concerning legislative analysis concerning whether or not there is individual liability against employees or supervisors under Labor Code section 1102.5. Defendants concede that liability may lie against individual persons who retaliate on behalf of an employer—for example, at...

Excerpt: ...ployee “shall be compensated for rest and recovery periods and other nonproductive time separate from any piece‐rate compensation.” (Lab. Code, §226.2, subd. (a)(1); Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 52‐53.) Defendant Deckerargues that its compensation structure— providing that mileage‐based piece‐rate compensation includes all non‐driving, on‐duty time—is legally compliant. Decker employed Threadg...

Excerpt: ...amended complaint (FAC) alleges causes of action for (1) premises liability; (2) general negligence; and (3) negligence per se. Plaintiff alleges she was visiting a family member at the Del Mar apartments. While at the pool, she walked to the restroom and slipped on the wet and slippery concrete surface in the hallway between the restroom doors. Before falling, Plaintiff did not see or appreciate that the area was unusually slippery due to the im...

Excerpt: ...or Production of Documents (RFP). (Declaration of Thomas Dreblow, ¶ 4; Exhibit A to Dreblow Dec.) On October 4, 2021, Defendant served unverified responses that were also not code‐compliant. (Dreblow Dec., ¶ 5; Exhibit B to Dreblow Dec.) Defendant served its verifications October 26, 2021. (Dreblow Dec., ¶ 7; Exhibit D to Dreblow Dec.) On October 22, 2021, Plaintiffs sent their initial meet‐and‐confer letter, explaining why Defendant's r...

Excerpt: ..., or that Defendant intended Plaintiff to rely on the representations. Plaintiff argues the cause of action is well pled. A fraudulent concealment claim requires a plaintiff to plead the following: (a) defendant concealed or suppressed a material fact; (b) defendant was under a duty to disclose the fact to the plaintiff; (c) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (d) plaintiff was unawar...

Excerpt: ...s liability arising from an accident that occurred at 5775 Riverside Drive in Chino on January 7, 2019. The complaint alleges the accident was caused by “uneven concrete.” Defendant supervised, maintained, owned, and controlled the premises. (Complaint, ¶¶4, 8, 9.) On March 13, 2022, Defendant filed the instant motion for summary judgment on grounds the defect was both (1) trivial; and (2) open and obvious. Plaintiff opposes and Defendant r...

Excerpt: ...nduct against Borer and his wife, which includes defaming, threatening, and yelling at them. On April 28, 2022, the Court granted Borer's ex parte request for a temporary restraining order. Thereafter, Respondent Clarke moved ex parte to set on short notice a hearing on her Anti‐Slapp Motion. That ex parte was granted with the Anti‐Slapp Motion attached to the Ex Parte being deemed filed on May 20, 2022. Petitioner Borer opposes by way of see...

Excerpt: ... the settlement. Counsel should provide evidence that the LWDA has been notified of the pending PAGA settlement. (This can be deferred to final approval.) Counsel should also provide the estimated number of aggrieved employees and aggregate number of work‐weeks or pay periods in the PAGA period. Page 2 of 4 CVS260060222 15. Sampson v. GJ Gentry General CIVDS1926604 Motion to Compel Arbitration Tentative Ruling: Do arbitration agreements exist? ...

Excerpt: ...on whereas between Capre and Cohen, the acts alleged arise out of an employer/employee relationship. To support a fiduciary duty, Capre needs to plead facts in support of a confidential relationship with Cohen.  SUSTAINS Cohen's special demurrer to the Cross‐Complaint for uncertainty, with leave to amend, for Capre to correct the property address.  DENIES the motion to strike. Allegations directed to duties owed Zee and the property selle...

Excerpt: ... in November 2019 (the who, what, when, and how or where). Scott similarly represented via e‐mail just after the transaction was funded that she would reimburse defendants and defendants thereafter went forward with the rescission and incurred the unpaid fees and costs (again outlining the who, when, what, and how or where). These specific allegations, coupled with the elements of the claim as outlined in the pleading, are particularized and st...

Excerpt: ...Regular Meeting Agenda and attachments; (2) City of Adelanto November 9, 2016 City Council Amended Regular Meeting Agenda and Attachments; (3) City of Adelanto Ordinance No. 557; and (4) City of Adelanto Ordinance No. 558. (These document are attached to counsel's concurrently filed declaration.) The two ordinances are subject to judicial notice either Evidence Code section 452, subdivision (b), which authorizes judicial notice of legislative ena...

Excerpt: ...an filed a joint Opposition to the Demurrers and a joint Opposition to the Strike Motions. Defendants filed replies. Without any authorization or statutory authority, Plaintiffs filed a response to the replies which is inappropriate. The Court did not consider Plaintiffs' response to the replies. Having considered the parties' moving papers, the Court rules as follows: A. Defendant Kohler's Demurrer (1) SUSTAIN with 20‐days leave to amend Defen...

Excerpt: ...ident. With these limitations, the court grants the motion to compel regarding Special Interrogatory Nos. 10‐12, 13, 40‐41, and 44. The court overrules the objections and grants the motion to compel a further response to Special Interrogatory No. 14. The response that an interrogatory is not applicable is not a substantive response. Defendant shall provide further responses as set forth above within 10 days from the date of this order (May 23...

Excerpt: ...hom remain only Skanska USA Civil West California District, Inc. and Skanska‐Rados. Through the operative fourth amended, Plaintiff alleges that she owns real property that Defendants improperly trespassed upon in completing the I‐215 widening project and in reconstructing of the 16th Street Bridge. Defendants' use of Plaintiff's property was unauthorized and by its encroachment Defendant removed a tree, stripped vegetation, placed an unstabl...

Excerpt: ...FAC) comprised of over 1121 paragraphs (not including the 186 paragraph Prayer of the FAC), seeks to hold Seller's Choice and Reyes, an escrow officer and escrow company, liable based upon a series of loan transactions. According to Plaintiffs' FAC, Plaintiffs entered into various loans with co‐defendant Kevin Zhang and/or his entities, and that Plaintiffs suffered damages because Plaintiffs did not receive the loan monies, and instead the loan...

Excerpt: ...hat the allegations are ambiguous, uncertain and unintelligible pursuant to Code of Civil Procedure section 430.10, subdivision (f) is overruled, because based upon a review of Plaintiffs' First Amended Complaint (FAC), and taking the allegations of Plaintiffs' First Amended Complaint as a whole, Plaintiffs' FAC and specifically, Plaintiffs' Fifth, Sixth, Tenth, and Eleventh Causes of Action contained therein are not so vague or so ambiguous or u...

Excerpt: ...not complied with the claims presentation requirement of the California Tort Claims Act, and has failed to allege circumstances excusing compliance. Government Code section 910 provides a notice must be sent to the public entity, identifying the claimant, the nature and circumstances of the event giving rise to the claim, the nature of the indebtedness, damage or loss being claimed, and the name or names of the public employees who caused the dam...

Excerpt: ...fficult to distinguish between what expert will testify as to what aspect of the vehicle. Thus, at the very least good cause had been shown for an order requiring GM to provide a bit more specificity as to the expert testimony. This would better flush out if there will be duplicative testimony and if some of the experts should be excluded all together. GM has since indicated it would limit its expert designation to one witness, Timothy Minich. Th...

Excerpt: ...dmitted motion”].) Here, that is precisely what Inland has done. Plaintiff Virginia Carillo contends the responses are not substantially code‐compliant, in part because Inland denied 13 of the 22 requests, and it admitted six requests, yet it did so elaborating on its admission or denial. However, this is not required under section 2033.220, which allows a party to either admit or deny a request, and there is no requirement that Inland explai...

Excerpt: ...3) Plaintiffs Respondent: (1)‐(2) Plaintiffs (3) Defendants The People of the State of California, acting by and through the Department of Transportation Page | 2 I. MOTION FOR SANCTIONS a. Statement of Law – Motions for Sanctions Pursuant to Code of Civil Procedure sections 128.5 and 128.7 Code of Civil Procedure1 section 128.7 provides for the imposition of sanctions for filing “frivolous” pleadings. However, the awarded sanctions are n...

Excerpt: ... Set No. One 4. Your Care's Motion to Compel Lamar Berryman to respond to Request for Production of Documents, Set No. One 5. Westprime's Motion to Compel ESP Healthcare Group, LLC to Respond to Request for Production of Documents, Set No. One 2 6. Westprime's Motion to Compel Zitro Medical LLC to respond to Request for Production of Documents, Set No. One 7. Westprime's Motion to Compel Integrity Medical Solutions LLC to Respond to Request for P...

Excerpt: ... Alegre (2009) 177 Cal.App.4th 1277, 1293‐1294; Leko v. Cornerstone Building Inspection Services (2001) 86 Cal.App.4th 1109, 1124 [“Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue”].) In addition, Defendant's objections were justified, and Plaintiff's position regarding the scope of ...

Excerpt: ... separate statement. 2. The Court grants Defendant Hyundai's motion for summary judgment. Hyundai demonstrates Plaintiff is bound by the class action settlement under which she released her claims. Further, the first and second causes of action are time‐barred. (Evidentiary Basis: Defendant Hyundai's Undisputed Facts Nos. 2‐16, 21, 23; Settlement Agreement (Exh. B); District Court Order Granting Final Settlement Approval (Exh. C); Amended Sup...

Excerpt: ...Special Interrogatories (2) Motion to Deem Requests for Admissions Admitted (3) Motion to Compel Responses to Requests for Production (4) Motion to Compel Response to Form Interrogatories Movant: Plaintiffs Keri Bedol and David Lawrence Respondent: Montclair Royal Senior Living, Inc. The moving party has filed moving papers requesting a ruling from the Court re a Discovery issue. A Discovery Conference Order (herein after DCO) was given in this c...

Excerpt: ...n one year later. He filed suit on September 20, 2021. Defendant's position is straightforward: Notice to the LWDA must be filed within one year of termination, and plaintiff was four months late. Therefore, he failed to timely exhaust his administrative remedies. Plaintiff's position is more complicated. Fundamentally, the argument seems to be that PAGA does not directly impose a time limitation for submitting the notice. The only time limitatio...

Excerpt: ...g the motion in his Report Number 11. On March 4, 2022, Plaintiff filed a request for Oral Argument on this Motion before the Referee and on April 27, 2022, in Report #12, the Referee recommended that the Court deny the request. Plaintiff then directly requested that the Court consider oral argument on the Motion and the Court granted it. After considering the written papers filed in support and in opposition, the Court's tentative is to grant th...

Excerpt: ...G's initial deposition even without prior knowledge of the purported new evidence. Alternative causation is virtually a ubiquitous defense in personal injury cases. (See e.g. the District's answer to the complaint.) As a result, good cause has not been shown for a second deposition as to topics “a,” “b,” and “e.” The “additional information” topic is simply too broad and therefore good cause has not been shown for topic “h.” M...

Excerpt: ...nswer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)1 ; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action s...

Excerpt: ... Rehabilitation (“CDCR”) to vacate approval of a project where CDCR Page 3 of 16 CVS260050922 proposes to build a fifty‐bed “Mental Health Crisis Facility” at the Chino Institute for Men (“CIM”). The project is one of several mental health facilities CDCR plans to build in response to an order from the United States District Court for the Eastern District of California, which found that CDCR lacked sufficient beds to meet the needs ...

Excerpt: ...ral Motors, LLC to serve further responses to special interrogatories 5, 14, 23, 40, 42, 43, and 45. (3) GRANTS Plaintiff's motion to compel Defendant General Motors, LLC to serve further responses to RFPs 6, 54, and 63. (4) DENIES Plaintiff's motion as to RFPs 38‐41, 47‐50, 61, and 62. Analysis and Bases re Denial Plaintiff's motion appears problematic as it relates to RFPs 38‐41 and 47‐50. The moving party must establish “good cause�...

Excerpt: ...t while corporations are nominal defendants in shareholder derivative suits, they are actually plaintiffs. (Forrest, supra, 58 Cal.App.4th at p. 74; Blue Water, supra, 192 Cal.App.4th at p. 489 [explaining such corporate entities are “actually plaintiffs in the eyes of the law.”].) Defendants' opposition is premised almost entirely on Opinion 1999‐153 (attached to Exh. B to Sichi's declaration) and its interpretation of what is now rule 1.1...

Excerpt: ... Court (Ingrassia) (2003) 114 Cal.App.4th 475, 480‐81) the privacy right is personal to the individual and “does not survive but dies with the person.”1 (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 821‐22, overruled by statute on other grounds per Timed Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 1008; Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 869‐70; Flynn v. Higham (1983) 149 C...

Excerpt: ...dice the other aggrieved employees. The court requires an analysis of the individual claims. 4. The incentive fee ($5,000) may be unnecessary in light of the individual settlement. Counsel should address why both payments (individual settlement and incentive award) are appropriate. The court also needs a declaration from the representative explaining what she has done to warrant the incentive award. Page 2 of 3 CVS260050622 5. The settlement admi...

Excerpt: ...s argument ignores Code of Civil Procedure section 599, which provides that notwithstanding any other law, a trial continuance extends any deadlines that had not already passed as of March 19, 2020, unless the court expressly orders otherwise. That means, each trial continuance automatically continued the discovery cutoff dates to be governed by the new trial in that the Court here has not expressly ordered otherwise. Thus, the motions were timel...

Excerpt: ...) (2012) 53 Cal.4th 1004, 2023.) With one possible exception, plaintiff has presented substantial evidence showing that each procedural requirement for class certification is present, which defendant fails to contest with contrary substantial evidence. The class is shown to be ascertainable, plaintiff's claims are shown to be typical of class claims, common questions of law and fact are shown to predominate over individual issues, the representat...

Excerpt: ...ities are not actionable. This argument does not support the demurrer. Exhaustion of Administrative Remedies – A demurrer is properly sustained based on failure to plead exhaustion of administrative remedies. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156.) Grand Terrace Municipal Code section 5.04.250 requires an administrative appeal to the city council of any decision of the collector made under Municipal Code...

Excerpt: ...malice under Section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) The court in Taylor directed the trial court to reinstate the punitive damage allegations in plaintiff's complaint because there were allegations of defendant's history of alcoholism, his prior arrest and convictions for drunk driving, his prior accident at...

Excerpt: ... utilized to attack a response containing objections, an agreement to comply that is incomplete, or a statement of inability to comply that is incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) ...

Excerpt: ...ing on the issue whether the class claims should be dismissed. Defendant has since acknowledged that arbitration of the individual claim is improper given the nature of the claim. The purported class action waiver is found within the “Employee Agreement to Arbitrate Disputes.” It provides: Except as otherwise required under applicable law, Employee and Employer expressly agree that: (1) class and collective action procedures are waived, and s...

Excerpt: ...porting Policy, exhibit 7 to Green's Deposition [Exh. D], (4) a handwritten note, exhibit 7 to Green's Deposition [Exh. D], (5) the October 5, 2017, email, exhibit 10 to Green's Deposition [Exh. D], (6) table with notes, exhibit 9 to Green's Deposition [Exh. E], and (7) table with notes, exhibit 14 to Spina's Deposition [Exh. G] on the grounds of lacks foundation, irrelevant, hearsay, and/or improper opinion: The Court sustains (irrelevant). Anal...

Excerpt: ...finition of "professional negligence" in Code Civ. Proc., § 340.5, has four elements: (1) a negligent act or omission to act by a health care provider in the rendering of professional services; (2) which act or omission is the proximate cause of injury or wrongful death; (3) provided that such services are within the scope of services for which the provider is licensed; and (4) which are not within any restriction imposed by the licensing agency...

Excerpt: ...nety days expired July 15, 2020. Petitioner did not file his petition in court until January 4, 2021. On September 4, 2020, however, Petitioner requested a second appeal. But under Ordinance 46, section 1‐1.105, subsection (c), the April 16, 2020, decision was “final.” There is no provision in the Ordinance for a second appeal whether before or after the ninety day statute of limitations for judicial review has expired. Therefore, the proce...

Excerpt: ...tay proceedings pending Viking River Cruises decision may be cited for persuasive value, if any, but since they are not controlling and are not evidence, judicial notice of them is denied. Similarly, papers filed in the Viking River Cruises case are irrelevant. The only fact that is relevant is that the United States Supreme Court has taken up the issue and will decide it shortly. Judicial notice of that fact is taken. A decision should be issued...