Excerpt: ...ther Ford nor Ken Grody are signatories to the RISC. The RISC includes a section entitled Arbitration Provision which states, in relevant part, Any claim or dispute, whether in contract, tort, statute or otherwise … between you and us or our employees, agents, successors or assigns, which arises out of or relates to your … purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such rel...

Excerpt: .... Motion: Motion to Continue the Trial Date and Expert Depositions Movant: Defendant American Automobile Association of Northern California, Nevada and Utah Respondents: Plaintiffs Estate of Gabriel Machado Castro, Gabriela Machado Castro and Humberto Machado Llanes Discussion ‐ “[t]he determination of a request for a continuance must be based upon the facts and circumstances of the case as they exist at the time of the determination.' [Citat...

Excerpt: ...the obligations imposed by the agreement containing the arbitration clause. (Goldman v. KPMG LLP (2009) 173 Cal.App.4th 209, 217‐218; Marenco v. DirectTV LLC (2015) 233 Cal.App.4th 1409, 1419‐1420 [equitable estoppel doctrine required employee who signed arbitration agreement with predecessor corporation to arbitrate claims against nonsignatory successor corporation (employees who continued working after merger impliedly accepted successor co...

Excerpt: ...declaration as follows: a. Objection Nos. 1, 5‐8 – Overrule b. Objection No. 2 – Sustain (lack of foundation) c. Objection Nos. 3, 4 – Sustain (secondary evidence rule). 3. The Court sustains all of Plaintiff's 16 evidentiary objections to unauthenticated documents contained in Defendant's compendium of evidence as lacking foundation and hearsay. 4. The Court sustains Plaintiff's objection to Defendant's Undisputed Fact No. 10 because it ...

Excerpt: ...nts for a breach of contract are (1) the existence of a contract, (2) the plaintiff's performance or excuse for performance, (3) the defendant's breach, and (4) resulting damages. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1176.) identified as parties to the contract. Plaintiffs contend that they have adequately alleged Defendants Cobb are bound and obligated to each other under the contract. Here, the SAC alleges Co...

Excerpt: ...Court is bound by the ruling. Page | 2 Motion to Dismiss Defendant TransAm seeks a discretionary dismissal on the basis that it be permitted to deposit $30,000 with the Court, as this is the maximum liability it faces under Vehicle Code section 17150. Defense counsel, Dawn B. Eyerly, provides a declaration stating that following the appellate opinion, she sent an email to Plaintiff's counsel agreeing to stipulate to TransAm's liability (under the...

Excerpt: ...nts an undue burden on the court and staff to process. Motion: The motion is granted in part. The Court determines that Plaintiff is the prevailing party and entitled to an award of reasonable attorneys' fees. The Court has carefully scrutinized the motion, the supporting Declarations and the billing, the Opposition and Declarations and Exhibits, and reviewed the Court's file and the pleadings. A. Attorney's Fees: In determining a proper fee awar...

Excerpt: ...the deadline in order to have the parties attempt to resolve this dispute without filing a motion. It is also undisputed that Fonseca served the deposition notice, no formal objections were served, and Hammonds failed to appear. Walmart also failed to file a motion for protective order. This is significant since the cases upon which Walmart primarily relies to avoid the deposition under the apex witness doctrine involve a motion for protective or...

Excerpt: ...et, the defendant must show a triable issue of one or more material facts exist. (Code Civ. Proc., §437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at pp. 849‐51.) The defendant may not rely on his answer. (Code Civ. Proc., §437c, subd. (p)(1).) The summary judgment motion must be supported by affidavits, declarations, discovery responses (e.g., admissions and interrogatories), depositions, and matters judicially noticed. (Code Civ. Proc., §4...

Excerpt: ...e of action. 3rd Cause of Action – Injunctive Relief Thomas states he has now dismissed the third cause of action and the demurrer is moot. The dismissal does not yet appear in the Register of Actions. If the dismissal has not been filed, then the demurrer to the third cause of action is sustained without leave to amend given that Thomas concedes this cause of action. 4 th Cause of Action – Breach of Fiduciary Duty Thomas alleges Collyer was ...

Excerpt: ...ir initial burden of showing a legitimate basis for the termination. (Fact No.'s 7‐12; see also Fact No. 248.) However, substantial responsive facts and evidence have been submitted upon which pretext could be found. Namely, the termination occurred within a few months after Jaramillo's complains about harassment; just after the complaint her job duties were changed, suggesting she was set up for failure; the evidence of the harassment from Con...

Excerpt: ... A plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation, and damages. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents); Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko).) “In general, each person has a duty to act with reasonable care under the circumstances.” (Regents, supra, at p. 619; accord, Vasilenko, supra, at p. 1083 [“Civil C...

Excerpt: ...nterpretation covering the asserted dispute.” (Rice v. Downs (2016) 248 Cal.App.4th 175, 185.) However, ordinary principles of contract interpretation apply, meaning the court must determine whether the parties agreed to arbitrate the claims at issue, the scope of the arbitration clause, and the terms of the arbitration clause. (Ibid.) In determining the applicability of an arbitration agreement, the court should attempt to give effect to the p...

Excerpt: ...ITAL OF MONTCLAIR, a business organization form unknown; COMMUNITY CONVALESCENT CENTER OF MONTCLAIR, INC., a corporation; PINKY BONOAN, an individual; JOHN POWERS, JR., an individual; JOSHUA POWERS, an individual; AMANDA POWERS, an individual; CHRISTINA AGUILAR, an individual; ROBERT GOMEZ, an individual; DOMINIQUE MELENDES, an individual; MARIAH REYES, an Page | 2 individual; AMERICA REYES, an individual; and DOES 1‐100, inclusive. Motion: (1)...

Excerpt: ...tality of the circumstances, the court may look at the frequency of the conduct, as well as its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's job performance. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Although teasing, offhand comments, and isolated incidents are generally not sufficient to create a hostile work environ...

Excerpt: ... Code section 452, subdivision (d), but denies judicial notice of the entry of dismissal in another state court proceeding as irrelevant. Plaintiff Mercado requests judicial notice of Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942 (Exh. 1) and a tentative ruling on compelling arbitration in Celiceo v. Nissan North America, San Diego Superior Court, case no. 37‐2022‐00006556‐CU‐BC‐CTL (Exh. 2). The Court denies judicial no...

Excerpt: ...of defendant San Antonio Ambulatory Surgical Center (SAASC). Defendant Dr. John Oakley Page | 2 (Oakley) was the attending anesthesiologist. Defendant Concentra, Inc. (Concentra) is alleged to be the entity operating occupational health services and urgent care centers in Rancho Cucamonga. Todd alleges that as a result of negligent care, he suffered serious nerve damage and long‐term right shoulder/arm/hand loss of use and severe pain to his ri...

Excerpt: ...cation Movant(s): Defendant American Automobile Association of Northern California, Nevada and Utah Respondent(s): Plaintiffs Estate of Gabriel Machado Castro, by and through its Successor in Interest, Humberto Machado Llanes, an Individual; Gabriela Machado Castro, an Individual; and Humberto Machado Llanes, an Individual Rulings The Court rules as follows: (1) Plaintiffs' 20 Evidentiary Objections to the Declaration of Matthew Hoskins are Overr...

Excerpt: ...emurrer to Plaintiff's First Amended Complaint Plaintiff's First Amended Complaint (FAC) against Defendant contained 14 employment‐related causes of action: (1) FEHA age, race, and disability discrimination; (2) FEHA retaliation; (3) FEHA failure to accommodate; (4) FEHA failure to engage in interactive process; (5) FEHA failure to prevent discrimination, harassment, or retaliation; (6) negligent hiring, supervision, and retention; (7) “breac...

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: ...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: ... 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: ...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: ... 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: ...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: ...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: ... to seize. The vehicle had been subject of a recall, but Defendants failed to advise Plaintiff of the same. Plaintiff confronted Defendants about the recall and was advised the vehicle was not eligible due to the mileage restriction. Defendant thereafter learned the mileage restriction had been extended, but Defendants did not disclose this to Plaintiff. (FAC, ¶¶37‐41.) During matching of the engine crankshaft and crankpins, metal shavings ma...

Excerpt: ... Proc., §1060.) Cross‐Complainant Wheeler's 7th cross‐claims seeks a declaration that Cross‐Defendant Copp owes it a duty to defend under its contractual agreement that contains an indemnity clause (¶¶44‐48). The law provides for specific rules on interpreting indemnity contracts unless a contract provides otherwise. If contractual indemnity exists, the indemnitee is entitled to recover his defense costs. (Civ. Code, §2778, subd. (3)....

Excerpt: ...equest is therefore $92,688.75 plus expenses of $6,298.99.1 In determining the reasonableness of the fees, the court applies the lodestar method, i.e., multiplying the number of hours reasonably worked by a reasonable hourly rate. (Flannery v. Prentice (2001) 26 Cal.4th 572, 584; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.) The Court can reduce hours that appear unreasonably inflated. (Chavez v. Cit...

Excerpt: ... is to compel a trial Page | 2 on the merits than when the default judgment is allowed to stand. [Citation.] Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. [Citation.] In the present case, [defendant] promptly moved to have the default judgment set aside once he learned of it. The trial court's order granting relief was within its sound d...

Excerpt: ...) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Page | 2 However, during the Governor's declared state of emergency related to the pandemic, Code of Civil Procedure section 599 provides that “[n]otwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitr...

Excerpt: ...ce of the demurrer. However, even if service was defective for some reason, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] Page | 2 This rule applies even when no notice was given at all.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Since Whisler substantively opposes ...

Excerpt: ...in Avant! and others, as cited by each side, a stay will cause a delay but less so than if Defendant were merely the subject of an investigation. There is a Page | 2 risk of prejudice to Plaintiff with respect to third party testimony, as memories may fade and evidence may otherwise become stale. Defendant will be prejudiced if a stay is not granted because he will be forced to choose between giving up his Fifth Amendment right to remain silent o...

Excerpt: ...the above section requires it to be filed. This must be addressed first. 1. 1 st & 3rd causes of action: Breach of Contract and Implied Covenant Defendant Hall challenges the contract‐based causes of action on the ground he is not a party to the purported contract. For pleading a breach of contract and implied covenant causes of action, a contract must exist. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1176; Smith v...

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