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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...ed the work at Cross‐ Defendants' store. Page | 2 Business and Professions Code section 7031 provides, in pertinent part, “Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is requir...

Excerpt: ...of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amend...

Excerpt: ...rrect. The matter is continued and in addition a Motion for Contempt Sanctions against American General Life Insurance and its attorneys will be set on the same day. Notwithstanding, the Court offers the following comments: Judicial Notice1 Defendant American General requests judicial notice of the Court of Appeal decision in Williams v. National Western Life Insurance Company (2021) 65 Cal.App.4th 436. DENY as unnecessary in that it is a binding...

Excerpt: ... October 15, 2020 [Exhs. D‐F to Katz's Decl.]: GRANT judicial notice per Evidence Code section 452, subdivision (d). Discussion In Sullivan's Notice of Motion and Motion, he seeks to adjudicate the prayer for treble damages and attorney fees. This is impermissible. An MSA on damages concerns only adjudicating the recovery of punitive damages: Accordingly, the current version of the statute, like the former version, contains parallel independent...

Excerpt: ... concealed a known defect from Plaintiff—the defective PowerNet Electrical Architecture, which consists of a computer, fuses, and internal relays. It is responsible for controlling and distributing electrical power throughout the vehicle. (Id. ¶148.) Plaintiffs alleges that because the electrical architecture controls power a wide variety of essential vehicle systems, including safety and security systems, the defect often leaves vehicles inca...

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: ...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: ...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: ... 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: ... had been presented to the Court but had not yet been processed. (Minutes 3/3/21.) Plaintiff requested a Mandarin interpreter, but there was none available at the time. The Court continued the hearing to May 12th so Chen could file an amended expert declaration. On March 10, 2021, Defendants filed an amended declaration of Dr. Sung.5 On May 12, 2021, at the continued MSJ hearing, the Court granted Plaintiff's request for another continuance of th...

Excerpt: ...she tripped and fell (Wall case). Plaintiff asserts that after her accidents her physical condition deteriorated and she has since developed neuropathic pain and Complex Regional Pain Syndrome. Therefore, she asserts, her medical records overlap. The Justice Declaration filed in support of the motion only was filed in the Wall case. He states that he is attaching copies of medical records to reveal how two doctors are treating Plaintiff for both ...

Excerpt: ...ntinued to October 18, 2021, and the parties agreed “the cut‐off dates tied to the trial date will not be extended to the new trial date with the exception of expert discovery and the ability to serve supplemental discovery pursuant to CCP sections 2030.070 and 2013.050.” [See, Bennett Decl., Exh. A.] The corresponding Order echoed the language in the Stipulation, and ordered: “The statutory discovery cut‐off with respect [to] supplemen...

Excerpt: ...2017, the employee named CMA as a defendant. Mr. Jones eventually dismissed CMA from his lawsuit. (Compl. ¶¶7‐8.) Prior to the accident, WJE used Defendant Genesis as an insurance broker to obtain motor carriers insurance coverage. (Compl. ¶4.) In the Jones action, CMA tendered its defense to WJE and its insurer State National Insurance Company, which was refused. As a result, CMA incurred attorney's fees and costs in defending the Jones act...

Excerpt: ...of an act or omission of the public entity or a public employee or any other person and (b) The liability of a public entity established by this part (commencing with Section 814) is subject 1 The Demurrer states it is being brought by all three defendants. However, only Chaffey is a defendant as to the second cause of action for dangerous condition of public property. Page | 2 to any immunity of the public entity provided by statute, including t...

Excerpt: ...oyed certain information on a protected computer within the meaning of the statute. Due to Defendant's alleged actions, Plaintiff seeks punitive damages from Defendant. (See FAC ¶ 82 and Prayer for Relief, ¶ 7.) Contrary to Defendant's arguments and assertions, Plaintiff has alleged sufficient facts in her FAC to allow for recovery of punitive damages if those damages are available based upon the causes of action alleged. However, Defendant arg...

Excerpt: ... the history of difficulty in obtaining the deposition of Valeko, Valeko's demand to take the depositions of Defendants' employees prior to his deposition, Valeko's refusal to attend noticed depositions and objections, and the issues raised at the discovery conference. (Yang Decl. at ¶¶2‐14.) Yang's testimony regarding Valeko's refusal to answer simple questions regarding his ability to give competent testimony which could be later used at tr...

Excerpt: ... allowed. Instead of addressing the prejudice issue, the opposition only focuses on Cabrera's purported prior knowledge of Nancy's identity and the purported time‐ barred nature of the claims. The Court has discretion to deny leave to amend where the proposed pleading is barred on its face (Kittredge Sports Co. v. Superior Ct. (1989) 213 Cal.App.3d 1045, 1048; California Casualty General Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 Cal.App.3d 274, 2...

Excerpt: ...t Cause of Action – Breach of Contract 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.) In the first cause of action, Plaintiff alleges that a copy of the subject written Purchase Agreement is attached to the Complaint as Exhibit 1 “and incor...

Excerpt: ... to the Court but had not yet been processed. Page | 4 Plaintiff requested a Mandarin interpreter, but there was none available at the time. The Court continued the hearing to May 12th so that Defendants could file an amended declaration of Dr. Sung. The Court ordered Defendants to submit an amended declaration within 10 days and then Plaintiff would have 20 days to file an opposition and Defendants would have 10 days to file a reply. On March 10...

Excerpt: ...ds each of these causes of action fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e) & (f).) Second Cause of Action – Civil Code § 1942.4 Defendant argues Plaintiffs still fail to name any public officer or enforcement agency that allegedly inspected the property or provided notice to Defendant. Additionally, Plaintiffs fail to allege the date the notice was provided to determine the 35 day...

Excerpt: ...e Civ. Proc., § 437c, subd. (a)(2).) Costco filed its MSJ on February 11, 2021. The proof service attached to the MSJ indicates Costco served its MSJ by mail on February 10th. Seventy‐five days beyond that date is Monday, April 26th. Adding the five court days for mail service results in a date of Saturday, May 1st. The hearing should have thus been noticed on or after Monday, May 3rd. Instead, it was noticed for March 23rd. However, this issu...

Excerpt: ...onstruction, Inc. and Katherine Hall a. Discussion i. 1st Cause of Action (“COA”) – Fraud 2nd COA – Negligent Misrepresentation The Koala Defendants assert both the allegations of fraud and negligent misrepresentation are not specifically pled as required. Cross‐Complainants argue the causes of action are well‐pled. For Hani and Frances Sayegh as to the second cause of action, they argue the cross‐ complaint does not allege they mad...

Excerpt: ...he premises expert witness declarations would not be based on the new trial date. Now, Defendant seeks to subvert the court order they prepared in stipulated to. Defendants have not complied with Code Civ. Proc., §2034.720 and the motion must be denied. Here, Plaintiff will be prejudiced by allowing Defendant to submit tardy expert witness information. Plaintiff was prepared to go to trial in February 2020. Defendant offered to go to mediation a...

Excerpt: ...dog. The motion is supported by a separate statement of fact, a declaration from defense counsel (Tracy W. Goldberg), and portions of the transcript from Foster's deposition. The undisputed facts presented with the motion indicate Foster was walking her dog, Doodles, when one of defendants' dog attacked and bit Doodles. (Fact No. 1.) In response, Foster attempted to protect Doodles by pulling him away from defendants' dog to get Doodle's back int...

Excerpt: ...on contained in the SAC and make the mistaken assumption that a positive ruling as to the 1st, 4th, and 5th causes of action will moot the 2nd, 3rd, and 6th causes of action resulting in a judgment in their favor. Code of Civil Procedure, section 437c specific states: Page | 2 “… the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the...

Excerpt: ...stice seem[] to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886.) The proponent of the stay or protective order must establish good cause. (GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754 [indicating “a presumption of good cause exists should be indulged only if circumstances warrant”].) The U.S. Supreme Court has also stated that the power to stay a proceeding is incidental to the power inhere...

Excerpt: ... at the time of the determination.' [Citation.]” (Bussard, supra, 164 Cal.App.4th at p. 864.) Liberality should be exercised in granting continuances when they are not prejudicial to the other parties. (Capital Nat. Bank of Sacramento, supra, 62 Cal.App.2d at p. 339.) Further, and as noted, in determining whether good cause exists to continue trial, “threats to procedural fairness” is a “touchstone for granting such a motion.” (Panoche,...

Excerpt: ...'s counsel, David M. DeBerry, also declares the statute of limitations defense has also been the subject of written discovery propounded on Plaintiffs. (DeBerry Decl., ¶7.) DeBerry further declares at the demurrer hearing in early 2020, Great Dane requested a limited discovery stay to allow it to proceed with a summary judgment motion on the statute of limitations defense. (DeBerry Decl., ¶8.) Great Dane argues the omission of the statute of li...

Excerpt: ...pers supporting a motion to compel an answer to a deposition question or to compel production of a document, electronically stored information, or tangible thing from a nonparty deponent must be personally served on the nonparty deponent.” On the other hand, when a subpoena is properly served upon an organization that is a California resident (such as leaving it with any officer, director, or custodian of records or with any agent or employee a...

Excerpt: ... aggrieved employee may bring a civil action “within one year from the date of that notice.” (Gov. Code, § 12965, subd. (b).) Given the May 24, 2019 right‐to‐sue notice, Plaintiff ordinarily would have had to file his Motion by Tuesday, May 26, 2020, as the one‐year period expired on Sunday, May 24, and as May 25 was the Memorial Day holiday. (§§ 10, 12 12a, subd. (a), 12b.) However, as Plaintiff points out, on April 6, 2020, the Jud...

Excerpt: ... to control the deposition proceedings or the information obtained thereby. (See Code Civ. Proc., § 2025.420.) The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Generally, this requires a showing that the burdens involved in the deposition proceeding clearly ...

Excerpt: ...tion, meaning she has waived these issues1 . (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) Next, and as to the first cause of action for breach of contract, “‘[a] written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effec...

Excerpt: ...thout an allegation of tender, a complaint challenging a foreclosure does not state a cause of action. (Karlsen v. Gibralter Sav. & Loan Assn. (1974) 15 Cal.App.3d 112, 117.) “It has been held that, at least when seeking to set aside the foreclosure sale, the plaintiff must also show prejudice and a tender of the amount of the secured indebtedness, or an excuse of tender.” (Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 929.) Howe...

Excerpt: ...cessary because the majority of the communications between Ms. Brody and attorney Kevin Crockett were in writing, Ms. Brody is a witness to the purported settlement agreement. For this reason, Plaintiff is entitled to take her deposition. However, the Court agrees with Defendant that the scope of the deposition should be limited to Ms. Brody's communications (both written and oral) with attorney Kevin Crockett between May 5, 2020 and August 5, 20...

Excerpt: ...ts pursuant to Code of Civil Procedure § 1032 and attorneys' fees incurred prior to July 1, 2019 as allowed by California law and to be determined by the Court to be necessary and reasonable for the prosecution of this action. 7. It is expressly understood that only those attorneys' fees and costs incurred prior to July 1, 2019 are eligible to be awarded. There shall be no allowance for fees and costs incurred for the mediation or for submitting...