Excerpt: ...urrer to be a more appropriate procedural vehicle for deciding that purely legal question. If the Court were to deny an injunction based on its preliminary assessment of how it might rule on a demurrer, the Court would be transforming this OSC hearing into what would functionally be a dispositive motion. The Court finds that plaintiff has a low likelihood of prevailing on the merits, based on the legal arguments set forth in defendants' oppositio...

Excerpt: ...ly 16, 2018 is vacated. The motion is granted to the extent set forth below. Regarding the scope of any stay, plaintiff has stated she only wants to complete the discovery already served that is the subject of the discovery motions also on calendar for today's hearing, June 14, 2018, and any discovery that has already been noticed. (See Opp. at 3:9‐10.) The court grants the first request, but denies the second. This matter is stayed except for ...

Excerpt: ...laintiff did not oppose the motion, and so it was granted. The Court signed an order dismissing this action on April 25, 2018. Plaintiff now moves to set aside the April 25, 2018 dismissal order, citing CCP section 473(b). Plaintiff's counsel says that he did not oppose the 583.420 motion because he “assumed it would be denied.” It appears his assumption was based at least in part on the fact that on March 6, 2018 (after the 583.420 motion wa...

Excerpt: ...c).) Plaintiff moves for “summary judgment” of the Second Cause of Action for Non‐Payment of Overtime Hours on Final Paycheck on the ground there are no genuine issues of material Plaintiff argues he has established the elements of his claim and there is no defense thereto. Defendants oppose the motion on the ground Plaintiff cannot carry his burden of persuasion and the motion should be denied. Defendants argue the evidence shows Plaintiff...

Excerpt: ... reasons stated below the Motion is granted. By way of the Motion, Plaintiff seeks leave to file a first amended complaint (“FAC”) that contains all four of the causes of action in the original complaint, and adds a fifth cause of action for Failure to Hire under Government Code section 12940(a). Plaintiff's original complaint alleges that Defendants fired Plaintiff due to Plaintiff's sexual orientation as a homosexual man. The proposed FAC k...

Excerpt: ...he Petitioner as permitted by PRC §21167.6(b)(2). “(W)e have been cited no authority, nor are we aware of any, indicating labor costs to review a petitioner‐prepared record of proceedings “for completeness” in connection with certification CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/14/18 ‐ 15 ‐ pursuant to section 21167.6, subdivision (b)(1), are recoverable record preparation costs. This sort of...

Excerpt: ...ird, Fourth, Fifth, Sixth, and Seventh Causes of Action and without leave to amend as to the Second Cause of Action. Stuber shall file and serve any Second Amended Cross‐Complaint on or before June 14, 2018. A. Factual Background. The FACC alleges the following pertinent facts. Mandio is a contractor. (FACC, ¶ 4.) He owned and remodeled 138 Arizona Avenue in Richmond, California (the “Property”). (¶ 2, 5.) He did some of the remodeling de...

Excerpt: ...sufficiency of the allegations in the complaint. It raises issues of law, not fact. (Lewis v. Safeway, Inc. (2015) 235 CA4th 385, 388.) “In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) Plaintiff Zion Yuzon, a student at Diablo Valley Community College, was injured on the campus quad area on...

Excerpt: ...dgment, the defendant has the burden of proof in showing that the affirmative defense of primary assumption of risk applies. “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff's primary assumption of the risk by demonstrating that the defendant CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 05/31/18 11 owed no lega...

Excerpt: ...on any other question until the motion has been determined. Moore v. Powell (1977) 70 Cal.App.3d 583, 587; Adams v. Super. Ct. (1964) 226 Cal.App.2d 365, 368. Aside from certain exceptions provided for in CCP sections 396b(c) and 397(e), any order of the court made prior to the determination of a motion to change venue is a nullity. Beard v. Super. Ct. (1940) 39 Cal.App.2d 284, 286. Accordingly, the Court must first decide the motion to change ve...

Excerpt: ...ted action is pending [1] may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or [2] it may consolidate the actions. [Bracketed numbers added.] (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) While Martin‐Bragg and other cases mention consolidation as a theoretical possibility, plaintiff has failed to cite the Court to a decision where this was in fact the chosen remedy. There are two o...

Excerpt: ...‐ Punitive damages are available when a defendant acts with “oppression, fraud or malice” when breaching an obligation owed to a plaintiff. See Civil Code Section 3294(a). Malice includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others.” See Civil Code Section 3294(c)(1). Oppression is defined as “despicable conduct that subjects a person to cruel and u...

Excerpt: ...f Civil Code § 2923.7; (4) violation of Civil Code § 2923.12; (5) violation of Civil Code § 2937; and (6) unfair business practices. Defendant demurs pursuant to Code of Civil Proc. § 430.10(e) and (f) on several grounds. For the following reasons, the Demurrer is sustained, with leave to amend. With respect to the second cause of action, Plaintiff may wish to consider whether to amend in light of prevailing authority which holds that “[w]h...

Excerpt: ...uant to Code of Civil Procedure § 437c. The MSA relates to five of the thirty causes of action of Plaintiff David Wong, M.D. (“Dr. Wong”) and Plaintiff San Ramon Endoscopy Center, Inc. (“SREC”) (collectively, “Plaintiffs”)'s Third Amended Complaint (“TAC”). For the following reasons, the MSA is granted‐in‐part and denied‐in‐part. A motion for summary adjudication may be granted only if it “completely disposes of a cause...

Excerpt: ...ther nurses in the same or similar locality and under similar circumstances (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215) and (2) Antioch has shown that it was not responsible for causing Plaintiff's injury (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132). Both grounds are highly disputed. STANDARD OF CARE Both parties have produced expert nursing witnesses on this issue. Antioch relies on the expert declaration of Julie Baird, ...

Excerpt: ...ch 27, 2018 and the hearing was set for May 10, 2018. Defendant has represented in his reply that the court clerk set the hearing date for this motion, which is the common practices of our court clerks. In addition, even if Defendant had requested the May 10, 2018 date the Court can still decide the merits of the motion. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296.) Plaintiff has sued “Defendant, JASON KRISTAL, c/o REDWO...

Excerpt: ... the Court has considered its contents. For reasons stated below, the Petition is denied. Relevant Factual And Procedural Background Plaintiffs are former employees of Defendants and on February 1, 2018, Plaintiffs filed their Complaint against Defendants alleging sixteen causes of action such as race and age discrimination, wrongful termination, and non‐payment of wages. Defendants contend that prior to commencement of their employment with De...

Excerpt: ...A COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 05/10/18 ‐ 24 ‐ Here, by verified petition and declarations, Petitioners allege a demand was made to inspect and copy the records of Respondent, The Sikh Center of the San Francisco Bay Area, “for a purpose reasonably related to such person's interest as members.” By way of letter in December 2017, Petitioners requested from Respondent Lally, in her capacity as presi...

Excerpt: ...been received and that the judgment is subject to amendment to add such costs once they have been approved by the court. This would occur by operation of law if no motion to tax costs was timely filed by Plaintiff or after order of the court following the hearing on a motion to tax costs. Here a motion to tax costs was timely filed. Defendant prematurely filed his memorandum of costs prior to service of the notice of entry of judgment. Plaintiff ...

Excerpt: ...y plaintiff Tekforce Corporation (“Plaintiff”). For reasons stated below, the Motion is granted. Relevant Factual and Procedural Background This is a collection case where both parties are corporations. Plaintiff filed its Complaint on October 31, 2016. On January 11, 2017, January 19, 2017, and January 25, 2017, and March 2, 2017, Plaintiff attempted to personally serve Defendant through its agent designated for service of process, Reddy Mar...

Excerpt: ...ny further amended complaint on or before June 7, 2018, and shall comply with the conditions on leave to amend set forth below. The basis for this ruling is as follows. A. The Entire FAC. 1. Tender. Defendants demur to the entire FAC on the ground that plaintiff has failed to tender the amount of the underlying indebtedness. This argument lacks merit, because the First through the Fifth Causes of Action seek only monetary relief. The Court will a...

Excerpt: ...eeks to add more details regarding the claim for indemnity and to add a new cause of action. Plaintiff/Cross‐Defendant Olson opposes the motion on the ground the amended crosscomplaint is a sham pleading. Ms. Olson argues that in the proposed FACC, SBJLG seeks to omit and contradict harmful facts pleaded in the original cross‐complaint. Olson claims that there has been no mistake and that SBJLG has not provided sufficient excuse or explanatio...

Excerpt: ...ersonal knowledge of issues surrounding FAIR Plan's decision to modify its policy language in 2017. There was no substantial justification for Ms. Salat‐Kolm's counsel to unilaterally terminate her deposition. As a result, the court is required to award sanctions pursuant to CCP §2025.480. The amount of the sanctions will be set at the hearing upon presentation of an updated cost and expense declaration from the moving party. Counsel shall be ...

Excerpt: ...son was admitted to Defendant San Pablo Healthcare & Wellness Center (“Facility”), a 24‐ hour skilled nursing facility on July 9, 2016. Plaintiff alleges Defendant Sol Healthcare, LLC and Defendant SR Capital, LLC were the owners, operators, parent company, and/or management company of the Facility. Plaintiff Lionel Johnson signed an Arbitration Agreement on July 11, 2016. Provisions 1.1 and 1.2 of the Agreement encompasses all disputes “...

Excerpt: ...et aside its order that cause existed to for dismissing Petitioner, that Petitioner's disability was not a convincing defense against the charges and that the prior discipline laid a solid foundation for dismissal. The Court has reviewed the petition, the administrative record, Bacon's declaration in support of the petition, as well as, the parties memoranda for and against granting the petition. For the reasons explained below, the petition for ...