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: ...(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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... (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...