Excerpt: ...the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. (Citations omitted.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Citations omitted.)” Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672. If a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any rea...

Excerpt: ...he relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation. (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.) A claim has probable validity if it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc., § 481.190.) Moving Plaintiff's claims for breach of contract and common counts do not ...

Excerpt: ...iff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547.) Seventeenth Cause of Action (Declaratory Relief). The elements of a cause of action for declaratory relief are: (i) a proper subject for declaratory relief per Code of Civil Procedure Section 1060; (ii) the existence of ...

Excerpt: ...fornia State Auto. Ass'n. Inter-Insurance Bureau v. City of Palo Alto (2006) 138 Cal.App.4th 474, 479 (“CSAA”), a case cited by Defendant in support of its demurrer, “damage caused by the public improvement as deliberately conceived, altered, or maintained may be recovered.” (Emphasis added.) In an opinion issued on August 15 of this year, the California Supreme Court reiterated that inverse condemnation claims may be based on damage caus...

Excerpt: ..., LLC v. Goldman (2011) 51 Cal.4th 811, 821; see also Singarella v. City of Boston, 173 N.E.2d 290,291 (Mass.1961).) Further, it is well established “that a supplemental agreement either adding to or varying the terms of the original contract, so as to impose new and onerous burdens upon one of the parties, requires a consideration to support it.” (Krobitzsch v. Middleton (1946) 72 Cal.App.2d 804, 808.) An obligation already owed by the promi...

Excerpt: ...e convenient forum. (See Code Civ. Proc., § 410.30, subd. (a).) A nonresident Plaintiff's choice of forum is entitled to “due deference” under all circumstances, but not a “strong presumption” of appropriateness. (National Football League v. Fireman's Fund Insurance Company (2013) 216 Cal.App.4th 902, 929- 930.) When Defendant seeks a dismissal of the action, Defendant must establish that this forum is a “seriously inconvenient” foru...

Excerpt: ...tion on behalf of an individual or in the public interest, and a private person lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”) Accordingly, the trial court must “review and approve” a PAGA settlement. Cal. Lab. Code § 2699(l)(2). As the California Supreme Court explained: “PAGA settlements are subject to t...

Excerpt: ...381 (“When a government agency is authorized to bring an action on behalf of an individual or in the public interest, and a private person lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”) Accordingly, the trial court must “review and approve” a PAGA settlement. Cal. Lab. Code § 2699(l)(2). As the California ...

Excerpt: ...008) 160 Cal. App. 4th 514, 519. The United States Supreme Court's decision three months ago in The Dutra Group v. Batterton (2019) 139 S. Ct. 2275, compels the conclusion that plaintiff may not recover on her claims under general maritime law for loss of society damages based on the diving injury to her father, in the waters off French Polynesia, for which he and plaintiff's mother already received $7,800,000 in settlement. The Dutra Court held ...

Excerpt: ...ice of Intention to Move for New Trial. (CCP 12a(a).) However, plaintiff did not do so until 8-1- 19. Plaintiff's Notice of Intention to Move for New Trial is two days late. As defendant County served its Notice of Entry of Judgment by mail, plaintiff may have been under the impression that she had an additional five days, pursuant to CCP 1013, to seek a new trial. However, as noted above, the time requirements of CCP 659 are not extended based o...

Excerpt: ...y adjudicated against him. Similarly, named plaintiffs Rodriguez and Gama settled their PAGA claims on an individual basis and are excluded from the class. The only settling plaintiff who has a potential PAGA claim is Kles. While counsel has provided Kles's letter to the LWDA in a supplemental declaration, this does not change the fact that Kles, unlike the Rodriguez plaintiffs, never filed a complaint that included a PAGA claim against R.J. Nobl...

Excerpt: ...2019. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. Counsel declares that the motion and supporting papers will be served on the LWDA (Quintilone Decl., ¶ 11), but there is no proof of service. 2. Please provide copies of each named Plaintiff's prefiling letter to the LWDA so the court can evaluate compliance with the ...

Excerpt: ...idence of malice, oppression or fraud warranting punitive damages; (2) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for punitive damages as to their Second Cause of Action for Violation of Civil Code Section 1942 as Plaintiffs have not provided clear and convincing evidence of malice, oppression or fraud warranting punitive damages; (3) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for puni...

Excerpt: ...on to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Applicable Law “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one t...

Excerpt: ...to the plaintiffs' occupancy (UMF 20); the room was inspected by a pest control vendor on 3/7/12, 2/25/13, and 1/29/14 finding no bedbugs (UMF 25); the defendant had an intensive program to detect and treat bedbug infestation (UMF 1-17); and the room has been inspected numerous times since the plaintiffs' occupancy without finding bedbugs (UMF d8.) Turning to the opposition, first, the opposing party's separate statement must state unequivocally ...

Excerpt: ... stayed pending completion of plaintiff's arbitration with PriorityWorkforce. The Case Management Conference set for today is ordered off calendar. A Post-Arbitration Review Hearing is set for March 13, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. The court concludes that there exists a valid agreement to arbitrate the claims ass...

Excerpt: ...rate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and th...

Excerpt: ...proposed cross-complaint attached to the Lemen Declaration as Exhibit A on or before September 20, 2019. Grounds for Ruling Plaintiffs are three former employees of defendant Uni-Caps, LLC, who were terminated on March 6, 2014, after they complained to Defendant and the DFEH about alleged FEHA violations by defendant. Plaintiffs bring this action alleging defendant violated wage and hour laws and discriminated against plaintiffs who are of Korean...

Excerpt: ... The subpoenas are QUASHED in all other respects. This is a PAGA-only action in which Plaintiff, on behalf of herself and other aggrieved employees of Rubio's, alleges violations of Labor Code provisions relating to minimum wages, meal and rest breaks, wage statements, waiting time and recordkeeping. On July 12, 2019, Rubio's served identical subpoenas on two of Plaintiff's former employers, Forever 21 and K-Mart. The subpoenas each seek: [A]ny a...

Excerpt: ...y 3, 2019. However, Ms. Acosta has not obtained, through a motion or an ex parte application, an order substituting her as Plaintiff's personal representative or successor in interest. (Code Civ. Proc., § 377.31.) Plaintiff's evidentiary objection numbers 1 and 2 are sustained. Plaintiff's evidentiary objection number 3 is overruled. The Court considered the corrected declarations of Jan P. Abbs and James W. Convy. Code of Civil Procedure sectio...

Excerpt: ...RANTED IN PART and DENIED IN PART as follows: 1. The Clerk is ordered to permanently seal the documents filed at ROA 1501, 1502, 1516, and 1517. 2. Cross-Complainant First Foundation Bank (“FFB”) is ordered to file public, redacted versions of the foregoing documents. 3. As to ROAs 1502 and 1517 (each a Declaration of Edward O. Morales), FFB is to file public, redacted versions that omit Exhibits 9, 10, 11, 12, 21, and 22, and redact Exhibits...

Excerpt: ...ble conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Allegations of intoxication, without more, do not state a claim for punitive damages. (Dawes v. Superior Court (1980) 111 Cal.App.3d...

Excerpt: ...alleges Defendants breached various “statutory and common law duties” owed to Decedent, which ultimately led to her death on October 31, 2018. Plaintiff's wrongful death claim is premised on the same alleged breaches of “statutory and common law duties” owed to Decedent that are alleged in the survivor claims (i.e., the first, second third, and fifth causes of action). (Compl., at ¶¶ 97- 102.) Defendants contend that “all of Plaintiff...

Excerpt: ...ted evidence to show that this matter was previously removed to federal court where SLS filed a motion for judgment on the pleadings. (Declaration of Andrew Mase (“Mase Decl.”), ¶ 5.) While SLS's motion for judgment on the pleadings was pending, Plaintiff and SLS stipulated to dismiss the federal claims from the First Amended Complaint and to remand the case to state court where Plaintiff could file a SAC. (Mase Decl., ¶ 5.) On 05/28/19, Pl...

Excerpt: ...ing party must have “made a complete and timely compliance” with all expert witness exchange requirements. (CCP § 2034.300; Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1446.) To make the required showing, the moving party must show that the expert witness disclosure is inadequate under the statutory scheme and that the failure to comply was unreasonable. (See CCP § 2034.300). However, when no demand is made by any party, no party is require...