Excerpt: ...ounsel shall be available at the hearing, in person or by telephone, in the event plaintiffs' counsel appears without following the procedures set forth in Local Rule 2.9. Defendant's demurrer to the first cause of action for violation of Propositions 13, 62, and 218 – California Constitution, Articles 13A, 13B, and 13C on the ground of failure to state sufficient facts is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs seek a refund of all fees defe...

Excerpt: ...ed‐for component of a specific high‐priced menu item.”) When those allegations were made, there was no law clarifying whether section 25980 banned the provision of foie gras as a bargained‐for component of a specific high‐priced menu item. And since the complaint alleges that Chef Frank was outspoken about the law and predicted it would drive sales underground, and his practices were similar to what a different chef described as a way �...

Excerpt: ...on does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Defendant's counsel is directed to contact Plaintiff's counsel forthwith and advise plaintiff's counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Defendant's counsel is unable to contact Plaintiff's counsel prior to the hearing, Defendant's counsel shall be available at the hearing, in person or by telephone, in the event Plaint...

Excerpt: ...e petition was filed. This petition, however, also seeks an injunction barring future actions/decisions. On that basis, the Court believes the later evidence is relevant and properly included and the motion to limit the scope is, therefore, DENIED. That being said, the Court does not believe a granting of the motion would have had any impact on its decision on the underlying petition. [2] PETITION FOR WRIT OF MANDAMUS Tentative Ruling: Petitioner...

Excerpt: ...ision (a)(2), which provides for an injunction “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.” (Ex Parte Application, filed July 24, 2019 (Application) at 4:4.) However, the Memorandum of Points and Authorities section of the Application argues that an injunction is appropriate pursuant to Cali...

Excerpt: ...able at the hearing, in person or by telephone, in the event plaintiffs' counsel appears without following the procedures set forth in Local Rule 2.9. Defendant State Farm General Insurance Company's demurrer to the fourth cause of action for concealment and fifth cause of action for negligent misrepresentation on the ground of failure to state sufficient facts is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs Emily Cocks and Andrew Skolnick have not ...

Excerpt: ...Rules of Court, rule 3.1700(a).) To be recoverable, costs must be reasonable in amount and reasonably necessary to the conduct of litigation. (§ 1033.5, subd. (c)(1)‐(3).) If the items listed in the memorandum of costs appear proper on their face, then the verified statement is prima facie evidence of their propriety. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267; Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 2...

Excerpt: ... demurrer are stated in the notice. (Code Civ. Proc., § 1010.) Defendants' demurrer to the first amended complaint on the ground of uncertainty [Code Civ. Proc., § 430.10, subd. (f)] is OVERRULED. Defendants' demurrer to the first cause of action for breach of the implied contract of continued employment and second cause of action for breach of the implied covenant of good faith and fair dealing on the ground of uncertainty is OVERRULED. The Co...

Excerpt: ...as moot. Cross‐Defendant J. Stanley Teixeira is directed to submit to this court, within seven (7) days of service of the minute order, a proposed judgment dismissing the third‐party cross‐complaint of Oscar Luna. Explanation: The third‐party cross‐complaint filed by Cross‐Complainant Oscar Luna (“Luna”) raises causes of action: (1) abuse of process, (2) intentional infliction of emotional distress, (3) negligent infliction of emo...

Excerpt: ...dants did not defend their objections in their opposition, all objections are not substantiated, and thus are overruled. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 254.) The Court fails to see how the attorney‐client privilege or the work product doctrine apply as the interrogatory only seeks facts based on defendants' personal knowledge. A further response from each defendant is warranted because defendants did not provide the inf...

Excerpt: ...solidation of these matters would promote judicial economy in light of the fact that all four cases involve the same tragic incident, with a significant overlap of evidence and witnesses. Because plaintiffs Theodore Shushereba and Ceclia Rose Shushereba allege defendant Pathway Home is liable on account of failures on the part of their employees who happen to be two of the decedents in the related matters, the Court would consider a future motion...

Excerpt: ...ers, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852, citing Munoz v. Davis (1983) 141 Cal. App. 3d 420, 425.) “Generally, it is based on a duty owed to the underlying plaintiff[.]” (Id.) Defendant/cross‐complainant Bruce Tucker Construction Inc. (“BTC”) alleges Ryan and Delta Consulting and Engineering of St. Helena (“Delta”) entered into a contract to provide design services related to the construction of ...

Excerpt: ...el shall be available at the hearing, in person or by telephone, in the event defendants' counsel appears without following the procedures set forth in Local Rule 2.9. Plaintiffs Joanne Strickland and Clean! The Series, LLC's motion for a preliminary injunction is GRANTED. Plaintiffs seeks an order restraining defendants Lil' Wave Financial, Inc. dba Superior Loan Servicing (“Loan Servicing”), Mark Capalongan, Sandra Capalongan, Jimmy Hui, Ji...

Excerpt: ...issions are deemed admitted by defendants. (Code Civ. Proc., § 2033.280, subd. (b).) Plaintiff's request for monetary sanctions is DENIED. The request is not codecompliant. Plaintiff did not cite in the notice of motion a specific code section authorizing sanctions. (Code Civ. Proc., §§ 2023.030‐2023.040; see Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (Rutter Group 2018) at § 8:2000 [“The notice of motion must contain a r...

Excerpt: ...Defendant insurance agent/broker (Samrick) and Defendant insurer (State Farm) for damages arising out of the destruction of their home by fire. The Second Amended Complaint represents Plaintiffs' third attempt to allege a cause of action for breach of fiduciary duty. A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. § 425.10, subd. (a)(1).) A demurrer is treated as “admitting all material facts properly pl...

Excerpt: ...r Illumina, Marcus Burch, declares his legal team conducted preliminary searches of certain systems, which did not result in any hits. (Bruch Decl., ¶ 3.) He adds that his legal team also made internal inquiries with applicable personnel in the finance and sales departments, and the personnel were entirely unfamiliar with RR Health. (Id.) Thus, it does not appear Illumina possess documents responsive to the subpoena. Moreover, based on the paper...

Excerpt: ...horities, the Sills are seeking further responses and production responsive to request for production of document numbers 17, 23, and 29‐30. The Court believes the appropriate provision for the motion may be Code of Civil Procedure section 2025.480, but it is not clear as the Sills failed to file the Notices of Deposition and Requests for Production of Documents as an exhibit. In fact, the Sills submitted no evidence whatsoever to support their...

Excerpt: ... and that as a result, the Court is without authority to issue sanctions pursuant to that section. In reply, Plaintiff contends that her meet and confer letter providing 23 days' notice of her intention to bring a motion for sanctions under Civil Procedure Code section 128.7, satisfied the requirements of section 128.5. Not so. The safe‐harbor provision at issue reads: If the alleged action or tactic is the making or opposing of a written motio...

Excerpt: ...e for the San Francisco County Superior Court. The Clerk is directed to transmit to the clerk of the Superior Court for San Francisco County a certified or exemplified copy of this order, together with all papers in the proceeding on file. The Defendants are directed to send notice to the parties. The case is set for a review hearing on September 18, 2019 at 8:30 a.m. in Dept. A of the Napa County Superior Court. The hearing is to confirm receipt...

Excerpt: ...e third, fourth, and fifth causes of action in the first amended verified cross‐complaint and make a request for judicial notice. A. Third Cause of Action The Belchers' demurrer to the third cause of action for quiet title/easement by necessity on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Defendants/cross‐complainants Michael F. Nichelini and Kelly J. Nichelini, Robert Charles Lee and Terri Lynn, Nic...

Excerpt: ...the appeal of the U.S. District Court for the Central District of California's order [restricting the Defendant Attorney General of California…from enforcing California Health and Safety Code § 25982 against Plaintiffs' USDA‐approved poultry products containing foie gras] in Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris (C.D. Cal. Jan. 7, 2015) 79 F.Supp.3d 1136. On September 15, 2017, the United States Court of Appeals for the...

Excerpt: ...y as to WFM's ‘corporate policy' on retention and preservation of video because there was no such uniform policy at the time of the incident.” (Blaxter Decl. at 2:8‐11.) Plaintiff counters that “Defendant will have to produce those of its officers, directors, managing agents, employees, or agents who set policies to formally state on the record that there was no policy, and Plaintiff will have the opportunity to inquire further also on th...

Excerpt: ... as a result of exposure to defendants' allegedly toxic products during Mr. Valva's career. Defendant Sherwin Williams Company (SWC) demurs to Plaintiffs' Complaint on the ground that it fails to state facts sufficient to sustain the fourth cause of action for fraudulent concealment. Specifically, SWC asserts that, “the Complaint contains no factual allegations of any fiduciary relationship, transaction, or even communication or contact between...

Excerpt: ... upon any party misusing the discovery process, including terminating sanctions consisting of an order striking the party's pleading. (Code Civ. Proc. § 2023.030, subd. (c).) If a party fails to obey an order compelling further response to interrogatories, “the court may make those orders that are just, including the imposition of…a terminating sanction….” (Code Civ. Proc. § 2023.030, subd. (d).) In lieu of, or in addition to, that sanc...

Excerpt: ...loyee's job performance or opportunity for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) In making this determination, the terms and conditions of employment “must be interpreted liberally and with a reasonable appreciation of the realities of the workplace.” (Ibid.) The gist of Plaintiff's allegations in this case is that her assignment requests were denied in favor of a newly hired teache...

Excerpt: ...ction or proceeding.” (Code Civ. Proc. § 1032, subd. (b).) In order to recover costs, the prevailing party is required to file and serve a Memorandum of Costs. (Cal. Rules of Court, rule 3.1700(a).) To be recoverable, costs must be reasonable in amount and reasonably necessary to the conduct of litigation. (Code Civ. Proc. § 1033.5, subd. (c)(1)‐(3).) If the items listed in the Memorandum of Costs appear proper on their face, then the verif...

Excerpt: ...dant/cross‐complainant Bruce Tucker Construction Inc. (“BTC”) shall serve verified codecompliant further responses, without objections, within 20 calendar days of service of notice of entry of order. The motion is denied as to interrogatory numbers 304.1, 314.7, 321.2, 321.5, 321.9‐321.10, 323.1‐323.3, and 324.1. BTC objects to interrogatory number 304.1 on the ground of relevance because it deals with insurance policy numbers, effectiv...

Excerpt: ... counsel is unable to contact the opposing party prior to the hearing, defendant's counsel shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 2.9. Defendant JPMorgan Chase Bank N.A.'s motion to compel the depositions of plaintiffs Gerald L. Nunn and Judith L. Nunn under Code of Civil Procedure section 2025.410, subdivision (a), is DENIED. The c...

Excerpt: ...uding terminating sanctions consisting of an order striking the party's pleading. (Code Civ. Proc. § 2023.030, subd. (c).) If a party fails to obey an order compelling further response to interrogatories, “the court may make those orders that are just, including the imposition of…a terminating sanction….” (Code Civ. Proc. § 2023.030, subd. (d).) In lieu of, or in addition to, that sanction, the court may impose a monetary sanction….�...

Excerpt: ...ight to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032, subd. (b).)1 On February 26, 2019, the Court granted Defendant's motion for summary judgment as to all causes of action asserted by Plaintiff. Defendant is therefore the prevailing party in the action as to all counts and is entitled to costs “except as otherwise expressly provided by statute.” (Code Civ. Proc. § 1032, subd. (b).) Analysis of the present motion i...

Excerpt: ...s without authority to dismiss the action. On January 25, 2019, the Court entered an order sustaining Defendant Pacific Gas & Electric Co.'s demurrer without leave to amend. The Court therein announced its finding that it is without jurisdiction over the present matter. The Court set an OSC re: Dismissal for March 12, 2019. However, on January 30, 2019, Defendant filed a Notice of Stay of proceedings, pursuant to section 362, subdivision (a) of t...

Excerpt: ...d cause of action for medical battery on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff Tiffany Smeikal alleges Dr. Gordon performed a medical procedure beyond her conditional consent. (Second Amended Compl., ¶ 18.) “There are three elements to a claim for medical 2 Moreover, the Court finds no evidence that service under that section was effectuated. That section authorizes service on a person o...

Excerpt: ...y cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg v. Ruttenberg, 53 Cal.App.4th 801, 808.) Once a defendant files a motion to quash, the burden is on the plaintiff to prove, by a preponderance of the evidence, the validity of the service, and the court's jurisdiction over ...

Excerpt: ...iper failed to satisfy any of the elements of Civil Code section 846 by not alleging the land was open to the public for a recreational purpose, Piper entered the premises for such a purpose, or Piper was engaged in any recreational activity. Based on the arguments going to the elements of the claim, Palmer is contending the complaint fails to state sufficient facts to state a cause of action. This is a ground for a general demurrer, but not for ...

Excerpt: ...0.10 [setting forth the permissible grounds to object to a pleading by demurrer].) No other grounds for the demurrer are stated in the notice. (Id., § 1010.) The County cites General of Am. Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 472, for the proposition that “[t]he broad discretionary power of the trial court to deny declaratory relief may be invoked by general demurrer.” This authority, however, is premised on setting forth a ground f...

Excerpt: ...le at the hearing, in person or by telephone, in the event plaintiffs' counsel appears without following the procedures set forth in Local Rule 2.9. Defendant Rodolfo Daquioag's demurrer to the first cause of action for negligence and second cause of action for premises liability on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can b...

Excerpt: ...hrough their opposition, they claim that both demurrer and motion to strike are rendered moot by their filing (the SACC). (Opposition Brief at 2:7‐25.) The SACC was improperly filed, and therefore the matters raised by the present motions remain at issue. Cross‐Complainants claim they were entitled to file the SACC, without leave, pursuant to Code of Civil Procedure section 472. That section provides that, “a party may amend its pleading on...

Excerpt: ...ntegrity of the judicial process and prevent prejudice to the parties.” (Motion at 2:7‐13.) Rule 3.7 of the Rules of Professional Conduct provides that an attorney shall not act as an advocate in a trial in which the attorney is likely to be a witness unless: (1) the attorneys' testimony relates to an uncontested issue or matter; (2) the testimony relates to the nature and value of legal services rendered in the case; or, (3) the lawyer has o...

Excerpt: ...r Damages and Equitable Relief in the matter of Brewer v. First American Title Co. The Court finds that the fact of its filing is irrelevant to the issues presented in the present motion. Similarly, judgments entered by the Superior Court of California in and for the County of Orange do not constitute binding authority on this Court, and the Court finds that the fact of the filing of the Order Granting Final Approval of Class Action Settlement an...

Excerpt: ...QA), directing respondent County of Napa (County) to set aside and vacate its certification of the Final Environmental Impact Report (EIR) and project approvals for the Napa Syar Quarry Expansion Project. Upon review of the moving papers, the Court tentatively agrees with Petitioner on two grounds: (1) the EIR fails to provide sufficient evidentiary support for the County's decision to use the five‐year averaged operations baseline for measurin...

Excerpt: ...annot establish the elements of any of the causes of action contained in the first amended complaint. This is not a valid ground for summary judgment. (See Code Civ. Proc., § 437c, subd. (a) [a motion for summary judgment asks the Court to determine the entire action has no merit and to terminate the action without the necessity of a trial].) Defendants also did not advance any evidence in their separate statement as to why the entire action has...

Excerpt: ...apa County Assessor, Napa County Auditor‐Controller, and Napa County Treasurer‐Tax Collector, contending there are no triable issues of material fact pertaining to their Complaint, in which Plaintiffs allege causes of action for (1) refund of property taxes, (2) declaratory relief, (3) denial of constitutional rights, (4) denial of procedural due process, and (5) writ of administrative mandamus. Preliminarily, as noted by Defendants, Plaintif...

Excerpt: ....5 applies to “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” (USS‐Posco Industries v. Case (2016) 244 Cal.App.4th 197, 215‐16, quoting Lab. Code, § 218.5, subd. (a).) “In such actions, ‘the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action...

Excerpt: ...rations filed on the party's behalf. [Citations.]” (See Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Here, the Court's order regarding the discovery responses are not subject to different interpretations as the responses admit the allegations supporting the complaint. Plaintiff's motion for judgment on the pleadings under Code of Civil Procedure section 438, subdivision (c)(1)(A), is GRANTED. (See Evans v. Californi...

Excerpt: ...r monetary sanctions for bringing its motion is DENIED. The request is not code‐compliant. Plaintiff did not cite in the notice of motion any code section authorizing sanctions. (Code Civ. Proc., §§ 2023.030‐ 2023.040; see Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (Rutter Group 2018) at § 8:2000 [“The notice of motion must contain a request for sanctions and must: . . . Cite the authority for such sanctions.”].) Any r...

Excerpt: ...rther responses to FLP's form interrogatories (FI) – general (set one) numbers 2.5, 8.4, 8.6‐8.8, 9.1‐9.2, 10.2, 12.2‐12.3 and 50.1‐50.6, FI – employment (set one) numbers 200.4, 201.1‐201.2, 204.3, 210.2‐210.4, 210.6, and 212.2‐212.3, and special interrogatories (SI) (set one) numbers 4‐14, 16‐21, 23‐25, and 27‐28.1 Plaintiff Vannessa Scott‐Allen opposes. A. Separate Statement Motions to compel further responses to in...

Excerpt: ...of the same transaction, occurrence, or series of transactions or occurrences . . . or asserts a claim, right, or interest in the property or controversy which is the subject of the cause of action brought against [cross‐ defendant].” (Code Civ. Proc. §428.10, subs. (b).) After the first trial date in the matter is set, a party must obtain leave of court to file a cross‐complaint against a third party. (Id. at § 428.50.) “Leave may be g...

Excerpt: ...pel arbitration and stay proceedings. That petition was based on an arbitration agreement with a class action waiver between Plaintiff and Defendant. On December 21, 2018, Plaintiff filed a First Amended Complaint asserting only one cause of action under California Labor Code, section 2698, et seq. (PAGA claim). Thereafter, Defendants renewed their petition to compel arbitration and stay proceedings. As an initial matter, Defendants contend that ...

Excerpt: ...ia. Four parties are involved in both: Langrebe Lath & Plastering, Inc. (LLP), a subcontractor; Davis/Reed Construction, Inc. (Davis/Reed), general contractor; L&W Supply Corporation (L&W), a materials supplier; and, Liberty Mutual Insurance Company (Liberty). Davis/Reed and Liberty bring the current motion to consolidate the two actions. LLP filed a Notice of Non‐Opposition. Only L&W opposes. “When actions involving a common question of law ...

Excerpt: ...) The moving party also bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Id. at p. 850‐51.) If the party carries this burden, there is a shift and the opposing party is then subjected to a burden of production to make a prima facie showing. (Ibid.) “In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to t...