Excerpt: ...defenses are not predicated upon a factual inquiry. The 15th affirmative defense concerns compliance with Code of Civil Procedure § 425.13. The facts surrounding the compliance are information needed to determine whether compliance occurred or not. Similarly, the 19th affirmative defense concerns the factual question of whether Decedent's injury and damages arise from professional negligence versus neglect. A factual inquiry would be necessary i...

Excerpt: ...mmad A. Zareh, D.D.S. cannot be liable for the acts of his corporation unless he was directly involved in the treatment of Plaintiff Myrna Yanez, which he was not [UF #4‐5, 7‐9 and cited evidence: Zareh's Declaration]; b. Defendant Mohammad A. Zareh, D.D.S. Inc. dba Cityview's expert opines that no act or omission by the treating dentists fell below the 2 standard of care and caused Plaintiff Yanez's injuries. As a result, vicarious liability...

Excerpt: ... 997; and, American Drug Stores, Inc. v. Stroh (1992) Cal.App.4th 1446, 1453); (2) Defendants' evidentiary objections to the Declaration of Raymond Babaian are Overruled in their entirety; (3) Defendants' evidentiary objections to Plaintiff's Exhibits 1‐3, 4, 6, 11‐13, 22, 24‐27 and 29‐30 are Overruled in their entirety; (4) Defendants' procedural and evidentiary objections to Plaintiff's Separate Statement of disputed facts are Overruled...

Excerpt: ... Due to the Pandemic caused by COVID, the clerk's office has been seriously short‐staffed and there is a massive backlog of documents which require filing and proceeding. With few exceptions, the Court instituted drop boxes for the filing of pleadings and documents to avoid in person contact. On the date a pleading or document is placed in the drop‐box it is stamped “received”.1 This is the ultimate filing date the clerk will use when it ...

Excerpt: ...ived by the petitioner, (b) Ground exists for the revocation of the agreement, or (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. The party may also seek a stay of pending litigation either by itself or in conjunction w...

Excerpt: ...efore unfairly prejudice the defendants with respect to the Page 2 of 2 CVS26073021 claims of other plaintiffs who do not claim corruption, although the City, as the moving party, is apparently unconcerned about that. Nevertheless, the differing motivations attributed to the City could be challenging for the trier of fact to parse. Some plaintiffs have demanded jury trials, while others have not. If the cases are tried together, with the jury sit...

Excerpt: ...on as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules Page 2 of 14 of Court, rule 3.1332(b); see Super. Ct. San Bernardino, Local Rules, rule 418 [“The Court adopts California Rule of Court, rule 3.1332, with respect to requests for continuances”]; Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468.) “Although continuances of trials are disfavored, each request for a continuance must b...

Excerpt: ... Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend; and, where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error, but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Thus, the policy to allow amendm...

Excerpt: ...ough Plaintiff dismissed her claim for Failure to Provide Accommodation for Lactation, testimony is still relevant for the failure to engage in interactive process and failure to accommodate. Additionally, the testimony may be relevant to show discrimination of her pregnancy [the need to continue lactating at the office]. 6.‐10. 21. 23. Overruled The testimony is relevant as the employer cited staffing costs as the legitimate business reason fo...

Excerpt: ...igures may differ from the estimates if the court adjusts the amounts of other deductions from the gross settlement funds.) Counsel has provided an estimate for the Snow fund, although the figure seems too low. The court has not located estimates for the other two settlements. Page 2 of 2 CVS26073021 2. Counsel should provide the number of aggrieved employees for each settlement fund (insofar as the number differs from the number of class members...

Excerpt: ...ust 8, 2017 and (B) Certified Judgment filed August 22, 2017 in Sacramento County Superior Court, SuperShuttle, etc., et al. v. Henning, et al. No. 34‐2014‐80001841 Although a court may take judicial notice of the existence of judicial opinions, court documents, and verdicts reached, it may not take judicial notice of the truth of hearsay statements in other decisions or court files, or of the truth of factual findings made in another action....

Excerpt: ...ise to the cause of action. (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 108‐09; Integral Development Corp. v. Helmut Weissenbach (2002) 99 Cal.App.4th 576, 583‐84.) The plaintiff bears the initial burden of “demonstrating facts by a preponderance of the evidence justifying the exercise of jurisdiction in California.” (In re Automobile Antitrust Cases, supra, 135 Cal.App.4th at p. 110.) The necessary facts are by...

Excerpt: ...e, however, was the request for dismissal filed by Helaire on April 20, 2021, purporting to have the case dismissed as to her without prejudice. That request for dismissal, which the clerk acted on and entered the dismissal on the same date, does not comport with the orders made by the court on April 9, 2021. The transcript from that hearing (Exb. C to the request for judicial notice) demonstrates clearly and unambiguously, that the dismissal was...

Excerpt: ...ecord … may sign and issue a subpoena … .” (Code Civ. Proc., § 1985, subd. (c).) Although District is correct that Thompson & Colegate is its “attorney of record,” it fails to recognize that since attorney Priscilla Hernandez is no longer an attorney at that firm, she no longer had the authority to engage in any actions on behalf of the firm. As a result, the deposition subpoena is invalid since it contains the signature of an attorney...

Excerpt: ...iced hearing.… ‘The hearing may be held either on the motion of the representative to certify the case as a class action; or, on motion by the party opposing the class to dismiss the class action allegations; or, by the court on its own motion....'”].) Thus it is entirely proper for a defendant to bring a motion to deny class certification. This motion, however, fails to demonstrate through admissible evidence why any necessary element for ...

Excerpt: ...were due, Akbar Razavi Sayed Razavi served verified supplemental responses to all the discovery responses. Therefore, the motions are moot except with respect to the issue of monetary sanctions. For purposes of evaluating the request for sanctions only, the following rulings are those that would have applied to the original responses had verified supplemental responses not been served. The court has not considered the supplemental responses. The ...

Excerpt: ...the order, and the court respects counsel's right to disagree, nothing about the order needs clarification. It appears the moving parties do Page 2 of 2 not want the order clarified; they want it changed. The moving parties are asking the court to reconsider its prior ruling based on the arguments presented and to modify the ruling accordingly. This is a motion for reconsideration, notwithstanding the title. A motion for reconsideration must: (1)...

Excerpt: ...ts entered into a five‐year Lease agreement. The agreement called for a monthly rental payment of Page 2 of 10 $5,000. After expiration of the Lease, the Plaintiff and Defendants agreed to a month‐tomonth tenancy beginning August 1, 2020. Rent was increased to $7,500 as of December 1, 2020, and then $8,257.71 effective January 1, 2021. On February 26, 2021, a 30‐Day Notice to Vacate was served on Defendants by certified mail addressed to De...

Excerpt: ... Harassment; (3) Age Discrimination; (4) Sexual Harassment in Violation of FEHA; (5) Failure to Accommodate Disability; (6) Failure to Engage in the Interactive Process of Accommodation of a Disability; (7) Failure to Prevent Discrimination and Harassment in Violation of FEHA; (8) Failure to Correct and Remedy Discrimination and Harassment; (9) Wrongful Termination; (10) Retaliation for Engaging in Protected Activity; (11) Hostile Work Environmen...

Excerpt: ...issue of fact precluding summary judgment. While Defendants make much of Plaintiff seeing no liquid or food and no food or liquid being on the floor, Plaintiff does contend she slipped on a slippery substance. She has also created an issue of fact as to how long the condition existed due to Defendants not having a sweeping protocol as testified to by Makridis (See, PAF, #2‐7). As stated in Ortega v. Kmart Corp.(2001) 26 Cal.4th 1200 at 1203: Th...

Excerpt: ...ing the content of a discovery request or the responses to such a request must be accompanied by a separate statement”, specifically including a motion “[f]or issue or evidentiary sanctions.” (Cal. Rules of Court, rule 3.1345(a)(7).) The court has Page 2 of 3 discretionary power to deny a discovery motion based on lack of a compliant separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) Defendant does not note this defic...

Excerpt: ...their home when an unprotected water line was punctured by a nail. The original complaint alleged a single cause of action for products liability. Page 2 of 40 Ryland answered and cross‐complained against Roes 1‐50, alleging 10 causes of action: (1) breach of contract; (2) express indemnity; (3) implied indemnity; (4) equitable indemnity; (5) comparative negligence and contribution; (6) breach of implied warranties; (7) breach of express warr...

Excerpt: ...laintiff's payments and sent a reinstatement demand of $25,920.98, even though Plaintiff made all payments under the modification agreement. On February 19, 2019, Chase recorded a Notice of Default and refused to accept Plaintiff's payments. As a result, Plaintiff lost a tenant. Plaintiff alleges she remains ready, willing, and able to tender payments as required under the parties' agreements. (Compl. ¶¶ 6‐29.) Plaintiff alleges the following...

Excerpt: ...f Government Code section 12940; (5) failure to prevent discrimination and harassment in violation of Government Code section 12940; (6) retaliation in violation of Government Code section 12940; and (7) declaratory and injunctive relief. Wise alleges she was employed by Zeiss until her termination on January 13, 2020. She alleges she was terminated in retaliation for her complaints and opposition to unlawful discrimination by Parks. During her e...

Excerpt: ...etween the protected activity and the employer's action. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) Plaintiffs specifically allege a violation of Subdivision (b) of Labor Code section 1102.5, which provides: An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a...

Excerpt: ...o the Complaint, Plaintiff worked for TRC railroad from 1981 to 1994 as a brakeman and conductor. During his career with TRC railroad and while working in TRC's yards, buildings and along its right of way, Plaintiff was exposed to various toxic substances and carcinogens including, but not limited to, diesel fuels/exhaust, benzene, creosote, and rock/mineral dust and fibers. Plaintiff's exposure to such toxic substances caused or contributed to h...

Excerpt: ...n. (See In re A.C. (2017) 13 Cal.App.5th 661, 672‐673 [When a party “fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; see Provost v. Regents of University of Cal. (2011) 201 Cal.App.4th 1289, 1300 [Where a party failed to provide any reasoned legal analysis or authority to support a position, they are forfeited].) It is also no excuse that Plaint...

Excerpt: ...Malan (Doe 4) as Defendants. On January 19, 2021, Plaintiff filed a Request for Dismissal, without prejudice, as to Defendant Katherine O'Neill. On April 26, 2021, Defendants Barstow Unified School District, James Davis, Amy McDonald, Jeff Malan and Scott Godfrey filed a Motion for Summary Judgment, with a hearing date of July 7, 2021. On June 16, 2021, Plaintiff moved ex parte to dismiss Defendants' motion for summary judgment or, alternatively,...

Excerpt: ...hority for the stay of the PAGA claims pending arbitration of the related claims. When a trial court “has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before” the court, it “shall, upon motion of a party . . . stay the action of proceeding until an arbitration is had in accordance with the order to arbitrate . . . .” (§ 1281.4.) “It is irrelevant under the statute whether the movant...

Excerpt: ... agreement. [Citations.] Only in limited circumstances may an arbitration agreement be enforced by nonsignatories. One such circumstance is where a benefit is conferred on the nonsignatory as a result of the agreement, making the nonsignatory a third party beneficiary of the arbitration agreement. [Citation.] Another is when the equitable estoppel doctrine applies and a nonsignatory is allowed to enforce an arbitration clause because the claims a...

Excerpt: ...mended Complaint (FAC) added Defendant Jane Weng. The FAC Page 2 of 10 pleads two causes of action: (1) breach of contract against Chien and (2) breach of the implied covenant against all. The FAC alleges on October 20, 2020, the Trust made an offer to purchase the Subject Property through its agent, Maryam Golbakhsh, to Chien through their broker/agent, Weng. Chien counter‐offered. The Trust accepted the counter‐ offer (¶¶10, 14, 16, 20‐...

Excerpt: ...) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIVDS2019176 RULING ON PETITION FOR WRIT OF MANDATE: GRANTED Date: July 12, 2021 Time: 1:30 p.m. Dept: S‐26 ‐ 1 ‐ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I Introduction Petitioner City of Hesperia (the “City”) seeks a writ of mandate to prevent Respondent Lake Arrowhead Community Services District (the “District”)1 from building a solar en...

Excerpt: ... to rule on objections 1 and 64‐75, but note all objections proffered in Plaintiff's separate statement should be overruled as improper; b. Overrule objections 2‐12 (including objection “4.5”), 15‐ 26, all three objections numbered “29”, 32‐35, 38‐46, 49‐56, 58‐59, and 61‐63; c. Sustain objections 13 and 27 (hearsay); d. Objection 14 – Allow Plaintiff Anne Marie Meyer an opportunity to cure and properly filed a signed de...

Excerpt: ... on May 14, 2021. It has been almost two months since the Court issued this Order and Plaintiff has willfully failed to comply or explain to the Court his failure to answer the three sets of discovery served upon him by Defendant Anji Logistics America Holdings, Inc. Plaintiff has also not contacted Defendant's attorney to request any extension or explain his lack of compliance with the Court's Order. Moreover, there have been four court hearings...

Excerpt: ...violations. But in this case, there are no individual claims being asserted. Therefore, there is no reason to stay the PAGA case, which is prosecuted by the named representative, acting on behalf of the State. No individual claims for damages are at issue, only penalties under PAGA. Defendant's position that plaintiff must pursue Page 2 of 3 individual claims in arbitration before pursuing claims on behalf of the State, for the benefit of the Sta...

Excerpt: ...while the putative class in this case addresses only post‐shift security checks; 3. Tuliau, the first‐filed case, goes back farther in time than this case; and 4. Tuliau includes claims under PAGA, which this case does not. While Tuliau is broader, there are no claims asserted in this case that are not also covered by Tuliau. Plaintiff argues that abatement is improper because the two cases are not identical, insofar as Tuliau is broader. Thi...

Excerpt: ... Court cannot handle all of the discovery motions and Informal Discovery Conferences filed and requested as it is underresourced even without the effects of the Pandemic.1 Plaintiff moved aggressively in filing the instant motion the very next business day after the deadline. It also appears that Defense counsel is also under‐resourced because the mistakes and missteps are frequent. The most important order of business at this point is ensuring...

Excerpt: ...ntially to his Parkinson's disease entitling him to a disability retirement under Government Code section 31720. Petitioner argues that SBCERA abused its discretion when it denied him a service‐connected disability retirement. He contends that the detailed medical report of Dr. Bijan Zardouz and Petitioner's testimony, along with that of his wife and other officers, constitute substantial evidence that his employment contributed substantially t...

Excerpt: ...trike to consider this motion. The transcripts are not necessary in light of the Court's ruling on the motion to strike setting forth the Court's reasoning, which this Court can consider without taking judicial notice. As for the LAUSD decision, it is unnecessary to for the Court to take judicial notice of its existence, because the District can simply cite it. Plaintiff's Request for Judicial Notice: The Court denies the request for judicial not...

Excerpt: ...he operative Second Amended Cross‐Complaint (“Marini's SACC”) pleads four cross‐claims: (1) abandonment of express easement, (2) nuisance, (3) prescriptive easement, and (4) declaratory relief. Cross‐Defendants Smith answered. And by intervention. MM & CC, Inc. (“MM”) answered. MM also filed a Complaint‐in‐Intervention against Marini alleging causes of action for nuisance and declaratory relief (“MM's Complaint”). Defendants...

Excerpt: ...e deposition notice. She objected to the unilaterally set date of deposition on the ground that she was unavailable on the noticed date. The parties met and conferred on the issue and ultimately agreed to a deposition date of April 13th. On April 2nd, Defendant served her responses to the document request portion of the deposition notice. On April 4th, Defendant again served objections to the deposition notice—this time based on the fact that d...

Excerpt: ... alternatives within five business days after recordation of the notice of default. Civil Code, section 2924.9, subdivision (a), indicates “[u]nless a borrower has previously exhausted the first lien loan modification process offered by, or through, his or her mortgage servicer described in Section 2923.6, within five business days after recording a notice of default pursuant to Section 2924, a mortgage servicer that offers one or more foreclos...

Excerpt: ...ionally under seal until further order of the Court. The party who requests the document be filed under seal shall prepare the necessary order in compliance with CRC 2.550 and 2.551.” Instead of following the court rule for obtaining such order, Plaintiff filed under seal his opposition, separate statement, and all evidence, even though it appear that at best what triggered this is that Harkins produced as confidential, documents attached to th...

Excerpt: ...ufficient facts since the claims on their face are barred by the statute of limitations. The demurrer Page 2 of 7 is supported by a meet and confer declaration and a request for judicial notice of the complaint and the Court's docket.1 In opposing the demurrer, Young contends that the limitations period was tolled due to Emergency Rule 9 of the California Rules of Court. Young further indicates that the complaint was tendered for filing with OneL...

Excerpt: ...Cal.App.4th 182, 194, quoting L.B. Research & Education Foundation v. UCLA Foundation (2005) 130 Cal.App.4th 171, 180, fn. 2. Demurrer: Civil Code §2100 elevates the duty of a common carrier to a higher affirmative duty. In Ingharm v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, the court noted that the “duty of due care does not necessarily end when the passenger alights safely from the carrier's vehicle; it ends only when the passenger is disch...

Excerpt: ...f Good Faith and Fair Dealing; (4) Enforcement of Mechanic's Liens; (5) Violation of Business & Professions Code section 7108.5; and (6) Violation of Civil Code section 8814. Page 2 of 13 This litigation pertains to construction performed on 182 units in six residential buildings known as the “Vintner on Foothill” located at 10130 and 10110 Foothill Boulevard in Rancho Cucamonga (the Vintner Project). Plaintiff alleges that in or about August...

Excerpt: ...t sanctions should not be imposed under Code of Civil Procedure section 1218. (Notice of Motion, p. 3, lines 12‐12.) Code of Civil Procedure section 1209, subdivision (a)(5), provides that disobedience of any lawful judgment, order or process of the court “are contempts of the authority of the court.” (Code Civ. Proc., § 1209, subd. (a)(5); see also, Ketscher v. Superior Court (1970) 9 Cal.App.3d 601, 604.) An individual or entity can be i...

Excerpt: ...rini filed a Cross‐Complaint against Smith. The operative Second Amended Cross‐Complaint (“Marini's SACC”) pleads four cross‐claims: (1) abandonment of express easement, (2) nuisance, (3) prescriptive easement, and (4) declaratory relief. Cross‐Defendants Smith answered. And by intervention. MM & CC, Inc. (“MM”) answered. MM also filed a Complaint‐in‐Intervention against Marini alleging causes of action for nuisance and declar...

Excerpt: ...eges that when employees had accrued but unused vacation hours upon separation of employment, Defendant failed to pay for these earned wages at the “final rate” including applicable shift differentials as required by Labor Code section 227.3. (FAC, ¶¶3, 5, 6.) Defendant demurs, asserting that the action is preempted by the federal Labor Management Relations Act of 1947 (29 U.S.C. § 185(a), LMRA) because Plaintiff either claims rights under...

Excerpt: ...d on four safety violations. Petitioner appealed the citations to the Occupational Safety and Health Appeals Board (the “Board”). The appeal involved a four‐day evidentiary hearing conducted by an Administrative Law Judge (the “ALJ”). The ALJ issued a decision upholding two of the citations containing three of the violations, but vacated Citation 2, which involved a $15,300 penalty against Petitioner for violation of 8 Cal. Code Regs. s...