Connie Parker vs. Nili N. Alai

Reply Other

Cal. Super. - 4th Dist.January 23, 2015

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nili Alai, SBR! #468142 (Practical Law Student) 14 Monarch Bay Plaza, Suite 383 ELECTRONICALLY FILED Dana Point, CA 92629 Superior Court of California, Telephone 949-542-6354 County of Orange CROSS COMPLAINANT NILI N. ALAI 06/3/2018 at 03:00:00 AW in Limited Scope Representation Pursuant to C.R.C. 3.35-3.37% Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER CONNIE PARKER, CASE NO. 30-2015-00767937-CU-OE-CJC Plaintiff, ASSIGNED FOR ALL PURPOSES TO: JUDICIAL OFFICER HON. JAMES DI V. CESARE NILIN. ALAI, M.D, aka ALLY N. ALAIN, M.D., an individual; and DOES 1 through 20, COMPLAINT FILED: January 23, 2015 CROSS-COMPLAINT: September 19, 2016 inclusive, TRIAL DATE: None Defendants. REPLY AND REQUEST TO GRANT DEFENDANT NILI ALAI’S UNOPPOSED NILI N. ALAI, M.D., NILI N. ALAI, M.D., MOTION FOR SUMMARY INC. dba THE SKIN CENTER, and 12712, JUDGEMENT, OR IN THE INC. ALTERNATIVE SUMMARY ADJUDICATION PURSUANT TO C.C.P. Cross-Complainants, § 437(c) V. CONNIE PARKER, CHARLES TON, and ROES 1 through 100, inclusive, Date: Friday June 22, 2018 Time: 9:30 a.m. Dept. C-16 Reservation: 72786499 Cross-Defendants. N r N a N a N a SN N a N a N a N a N a N a N a N a N a S a S a N a SN N a N a N a N a N e N e N e Pursuant to Calif. Rules of Court 8.54 (c), “A failure to oppose a motion may be deemed a consent to the granting of the motion.”. Accordingly, the moving party respectfully requests that I'C.R.C. 9.42 and State Bar Title 3 Rules authorize “Practical Training of Law Students, and Registration with the State Bar. Law student status need not be related to instant case representation. Ally Alain 2C.R.C. 3.37 Nondisclosure of Attorney assistance in law ahd motion, or hearings. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Court herewith grant Defendant’s unopposed Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication ( herein “MSJ” “MSA”) as to all five causes of action in Plaintiff’s operative Complaint. Defendant’s Code of Civil Procedure § 437 motion was filed and served timely. It was personally served on Plaintiff’s counsel on April 6, 2018 by hand delivery vis-a vis a courier. The proof of service was filed with the Court. Plaintiff willfully substituted out her counsel on April 9, 2018. Notwithstanding Plaintiff’s failure to oppose the MSJ, and hence equivalent to consenting to granting the MSJ, the moving party respectfully moves the Court to grant the MSJ as to all causes of action. Moreover, Plaintiff failed to oppose any of the expert testimony and declarations under oath of Defendant’s experts submitted in the MSJ. THE COURT HAS STATUTORY BASIS TO GRANT THIS MSJ/ MSA. A. Summary Judgment Is Appropriate When There Is No Triable Issue. California Code of Civil Procedure section 437c(a) authorizes the court to grant summary judgment if a party contends a cause of action has no merit. Defendants contend that Plaintiff’s action has less than no merit. In the alternative, a motion for summary adjudication may be made as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment See Code of Civil Procedure section 437¢()(2). THE ENTRY OF SUMMARY JUDGMENT IS MANDATORY WHEN THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT. Defendants are entitled to summary judgment where the record establishes that, a matter of law, a Plaintiff’s asserted complaint can not prevail. County of Los Angeles v. Security Insurance Company of Hartford (1975) 52 Cal. App. 3d 808-, 816. The entry of summary judgement is mandatory where the documents disclose no triable issue of material fact. Krasley v. Superior Court (1980) 1.01 Cal. App. 3d 425, 432. 2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. SUPREME COURT ARTICULATED THE BURDEN SHIFTING FORMULA IN WRONGFUL TERMINATION CASES. In reviewing motions for summary judgment or adjudication in wrongful termination/discrimination cases, California courts employ the burden-shifting formula first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (See King v. United Parcel Service (2007) 152 Cal.App.4th 426,433,fn.2; see also Scotch v. Art Institute of California (2009) 173 Cal. App.4th 986, 1004.) PLAINTIFF FAILS TO MAKE A PRIMA FACIE SHOWING OF HER CAUSES OF ACTION.. Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.) Here, Plaintiff did not allege and thus she can not make a prima facie showing of her causes of action. PLAINTIFF IS BOUND BY HER TESTIMONY. Plaintiff is bound by admissions made in deposition testimony or responses to discovery. (See Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 ["Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant's earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and conclude there is no substantial evidence of a triable issue of fact."']) PLAINTIFF FAILS TO MAKE A PRIMA FACIE SHOWING OF FRAUD. Fraud must be plead with particularity specificity rather than with general or conclusory allegations. Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were made. Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1261-1262. To state the claim against an entity, Plaintiff must also include allegations regarding the speaker’s authority to bind the entity. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Moreover, Plaintiff’s testimony on the purported contract is - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contradictory between amended complaint versions and within each complaint. Plaintiff’s pleadings remain defective, and she still fails to plead facts sufficient for her causes of action. THE COURT HAS STATUTORY BASIS TO GRANT THE MOVING PARTIES’ MERITORIOUS MSJ/ MSA. Plaintiff is Bound by her Testimony and Cannot Prove Her Wage and Hour Claim. The opposing party is bound by admissions made in deposition testimony or responses to discovery. (id. Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal. App.4th 1078, 1087 CONCLUSIONS: Granting the moving parties’ MSJ/ MSA is in the furtherance of justice, and should be granted. Respectfully submitted, Dated : June 13, 2018 J T 5 { /s./Alai a ~ Nili Alai 4 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢)