Excerpt: ... “forced back” into arbitration upon entering the RISC. This argument is not persuasive. First, RP here did not opt out of the arbitration provision in the Order Agreement, and thus RP's “hyper loop” arguments to this effect are somewhat hypothetical. Second, as MP points out in the Reply, the RISC is only entered into if a customer purchases the vehicle on credit; if not, then the hypothetical customer could opt out of the arbitration ag...

Excerpt: ...s defined as “All individuals who were employed as non-exempt, hourly-paid employees by Defendant in California and worked at least one shift greater than 3.5 hours in length at any time from September 30, 2007 through the date of class certification.” Broadly speaking, the classwide theory of liability was as follows: Defendant's 2008 rest break policy was illegal as written, in that it required employees to remain on premises. While Defenda...

Excerpt: ...f action under any legal theory, regardless of what label plaintiffs place on their cause of action, and whether they state facts disclosing some right to relief. Michaelian v. State Comp. Ins. Fund (1996) 50 Cal. App. 4th 1093, 1105; Cellular Plus, Inc. v. Superior Court (1993) 14 Cal. App. 4th 1224, 1231. In paragraphs 54-57 and 64 of their Third Amended Complaint, on pp. 27 and 30, plaintiffs allege that the towing of plaintiffs' vehicles viol...

Excerpt: ...nd individual claims: Plaintiffs do have a point that in certain circumstances, a minority shareholder may sue for a breach of fiduciary duty (or other wrong) via a derivative or a direct action, but they may not do what they are attempting to do here and sue for both. They have to pick one or the other. The court in Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621 considered and rejected similar attempts to allege both a di...

Excerpt: ...bjections 1 and 7 to the Pham Declaration. The Court declines to rule on the remaining objections to the Pham Declaration. (CCP § 437c(q).) The Court OVERRULES all objections to the Knypstra Declaration. Cardenas's Request for Judicial Notice is GRANTED. I. Factual Background A. The Underlying Lawsuit This action concerns a hotel development in Buena Park. BA Hotel & Resort, LLC originally purchased from the City the property on which the hotel ...

Excerpt: ...emonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Ko...

Excerpt: ...ettlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. The Settlement provides that the Settlement Administrator's determination of disputes will be final and non-appealable. Settlement, §13. This must be revised. The parties should file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. The Court shall have the right to review any decis...

Excerpt: ...t described summary judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] If the plaintiff meets this...

Excerpt: ...fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (H...

Excerpt: ...son Driscoll & Damico LLP, and Sedgwick Claims Management Services (collectively, hereinafter, the “Subpoenaed Parties”). For the reasons set forth below, Plaintiffs/Cross-Defendants motions are DENIED. Code of Civil Procedure 2025.450 (“Section 2025.450”) provides: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization ...

Excerpt: ...he following reasons, The Motion is DENIED. Plaintiff filed a Notice of Appeal of Judgment of Dismissal after the Court sustained the Bank of America Defendants' demurrer to the Third Amended Complaint (“TAC”) without leave to amend. Although Plaintiff appeals from the “judgment” entered on October 27, 2020 (“Bank of America Appeal”), the Bank of America Judgment was entered on January 27, 2020 and Notice of Entry of Judgment was file...

Excerpt: ...emurrers based on uncertainty are rarely sustained – only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertainty may lie if the failure to label the parties and claims renders the compl...

Excerpt: ...HOA's CC&Rs and for Defendant's alleged harassment of Plaintiffs. Defendant brings a special motion to strike Plaintiffs' third cause of action intentional infliction of emotional distress (“IIED”) claim. Defendant contends that his statements that are the basis for Plaintiffs' IIED claim were “made in connection with issues of public interest in a public forum,” and, as such, are subject to the protections of CCP section 425.16 (the “A...

Excerpt: ...son Driscoll & Damico LLP, and Sedgwick Claims Management Services (collectively, hereinafter, the “Subpoenaed Parties”). For the reasons set forth below, Plaintiffs/Cross-Defendants motions are DENIED. Code of Civil Procedure 2025.450 (“Section 2025.450”) provides: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization ...

Excerpt: ...emonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Ko...

Excerpt: ...t described summary judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] If the plaintiff meets this...

Excerpt: ...ies, contracted with Defendant 3PL Global to store the wine. The wine was moved to Defendant's facilities in January 2014. In June 2017, after the investigation was concluded, Plaintiff returned the wine to its own facilities. In July 2017, Plaintiff learned that the wine and its packaging had been damaged while being stored in Defendant's facilities. Plaintiff claims to have lost $2.8 million. Based on the foregoing allegations, Plaintiff assert...

Excerpt: ...v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452 states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction mean...

Excerpt: ...fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (H...

Excerpt: ....App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to ...

Excerpt: ...arty, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” Code of Civil Procedure section 2032.310, states, in part, “(a) If any person desires to obtain discovery . . . by a mental examination, the party shall obtain leave of court. [¶] (b) A motion for examination unde...

Excerpt: ...w that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th...

Excerpt: ...Code of Civil Procedure section 2031.060 states in part, “(a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (b) The court, f...

Excerpt: ... the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 12...

Excerpt: ...dero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal construct...