Excerpt: ...otice of Exhibits 5 and 6. Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code of Civil Procedure section 438, subdivision (d)...

Excerpt: ...omplaint. [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, 1238, pr...

Excerpt: ...s no collusion, fraud, tortious conduct or effect to injure the non-settling defendants; that Defendant BONILLA will pay $29k of the $30k GEICO auto insurance policy limits to GERMAN PLAINTIFFS in exchange or settlement of all claims; and that Defendant BONILLA will pay $1k to the ESCAMILLA PLAINTIFFS in exchange for a release of all claims. (See Hodge Decl., ¶¶ 5 and 6.) Defendant BONILLA also presented evidence that he has no appreciable asse...

Excerpt: ...eillance video taken of Plaintiff. Defendants decline to produce surveillance video of Plaintiff on the grounds of the qualified work product privilege. Plaintiff contended that the surveillance video was no protected under the work product rule and that there was a special need for the production of the tape. “The attorney work-product doctrine provides two levels of protection for attorney work product—absolute protection and qualified prot...

Excerpt: ...pp.4 th 1228, 1238). Having done so, the Court finds sufficient factual allegations to support claims for conversion, either directly or via a theory of civil conspiracy. (See ¶29, ¶65, ¶69, ¶71 and ¶74 of TAC). “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (See Quelimane Co. v. Stewart Titl...

Excerpt: ... appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the l...

Excerpt: ...y associated with the physical injuries claimed,” and that he “will not present expert testimony regarding the usual mental and emotional distress at trial in support of his claim for damages.” (Carrillo Decl. ¶ 11, Exh. J [Exh. 2 attached thereto].) Moving Parties have not demonstrated exceptional circumstances to persuade the Court to grant the motion despite the stipulation. Further, Moving Parties do not sufficiently demonstrate how De...

Excerpt: ... separate statement provide “all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” Here, the “Separate Statement” submitted by the Mr. Weed does not comply with Cal. Rules of Ct., Rule 3.1345(c). It simply attac...

Excerpt: .../2019, Defendants to submit a declaration showing a notice to employee was properly served and the subpoena was properly issued and served on the custodian of records. Hearing on this Motion continued to 7/22/2019 at 1:30 p.m. AFTER THE CONTINUANCE AND ASSUMING THE SUBPOENA WAS PROPERLY ISSUED AND SERVED Plaintiff Maria Arrieta seeks an order quashing the subpoena defendant ASAS Group, Inc. issued to SWH Mimi's Café, LLC, Plaintiff's current emp...

Excerpt: ...under submission. Void Judgment: The Cross-Complaint did not allege personal injury or wrongful death. The pleading alleged no specific sum of damages. Since the Cross-Complaint failed to allege any amount of the Default Judgment is void. “A judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to ...

Excerpt: ...any statute prohibiting the filing of an amended costs memorandum, so long as the memorandum is timely under CRC 3.1700. Insofar as the Reply in support of this Motion addresses costs not listed in the costs memorandum filed on March 29, 2019, such arguments are disregarded, as new arguments or evidence are not permitted on reply, particularly where Plaintiff has not had an opportunity to respond. Filing and Motion Fees Defendant argues that the ...

Excerpt: ...in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of CCP § 526(a)(3) is to preserve the status quo pending litigation. (See, Stockton v. Newman (1957) 148 Cal.App.2d 558, 563.) First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Sup...

Excerpt: ..., hearsay. 2. Sustained, lack of foundation, hearsay. 3. Overruled. 4-5 Sustained, hearsay Declaration of Steve Rader. 1. Sustained as to “…after the homebuilder's counsel…” through end, hearsay, overrule as to balance. 2. Sustained, lack of foundation, improper expert opinion. 3. Sustained, lack of foundation, hearsay. 4-9 Sustained, Evid. Code § 1520. 10. Sustained, lack of foundation, hearsay. 11-12 Overruled. 13-18 Sustained, hearsay...

Excerpt: ...aint (FAC) is OVERRULED, and its motion to strike portions of the FAC is DENIED. Plaintiff De Trinh's request for leave to file a second amended complaint is DENIED AS MOOT. Defendant's unopposed request for judicial notice is GRANTED. Defendant shall have until June 28, 2019 to file an answer to the FAC. DEFENDANT'S DEMURRER TO FAC Defendant demurs only to Plaintiff's ninth cause of action alleging a PAGA claim. In general, Defendant argues that...

Excerpt: ...Business and Professions Code section 17200; (4) negligence; and (5) equitable relief. Defendants Westpark Corte Bella Community Association, Optimum Professional Property Management, and Josephine Perez demurred to the Complaint. Because Plaintiff failed to oppose the demurrer, the demurrer was sustained with 15 days leave to amend. On December 31, 2018, Plaintiff filed a Second Amended Complaint (“SAC”). Defendants Westpark Corte Bella Comm...

Excerpt: ...filed on or before August 9, 2019. If a revised settlement and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues: 1. Provide a valuation for each individual cause of action. 2. There still is no mechanism within the stipulation for payment of the $625 (25% of the LWDA amount) to “aggrieved employees” as opposed to class members. T...

Excerpt: ...ment that may be filed by Defendant, until the final resolution of this action is had. The Motion is denied. A corporation whose powers have been suspended for nonpayment of the corporate franchise tax lacks capacity to sue in California courts; and, if sued, it lacks capacity to defend. (Rev. & Tax Code, § 23301; Reed v. Norman (1957) 48 Cal.2d 338, 342; see Bourhis v. Lord (2013) 56 Cal.4th 320, 324; Color-Vue, Inc. v. Abrams (1996) 44 Cal.App...

Excerpt: ...ct an award rendered by the arbitrator shall be filed in any court of competent jurisdiction in the county in which the property is located.” [Emphasis added.] Vincent Decl., Ex. A. “[P]olicies favoring the efficiency of private arbitration as a means of dispute resolution must [] sometimes yield to its fundamentally contractual nature, and to the attendant requirement that arbitration shall proceed as the parties themselves have agreed.” [...

Excerpt: ...t approval of a PAGA or Class Action settlement files the settlement agreement, and the parties must do so here as well. If the parties want to file the settlement agreement conditionally under seal, and file a Motion to Seal, they are free to do so, and the court will consider the motion pursuant to CRC Rules 2.550 and 2.551. The court notes that it does not appear that the individual settlement amount is confidential, because the motion disclos...

Excerpt: ... motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Mansouri v. Superior Court (2010) 181 Cal.App.4 th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4 th 1569, 1575. The burden rests with the party seeking to compel arbitration ...

Excerpt: ... 2), or (2) establishing that only Plaintiff could have accessed her work email regarding the revised agreements by, for example, demonstrating by way of admissible evidence (rather than “information and belief” or “an understanding”) that after initially signing on at the commencement of her employment using the default password she was required to create a unique password or identifier that only she could use. While the declarations cre...

Excerpt: ... injury or despicable 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.) In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court ruled that non-intentional torts ma...

Excerpt: ... Plaintiff filed this class action seeking to recover for alleged labor code violations on behalf of individuals employed by Defendant as “Job Coaches.” Over time, Plaintiff filed a First and Second Amended Complaint. Each time, Plaintiff sought to recover on behalf of individuals employed as “Job Coaches.” On March 12, 2019, Plaintiff filed a Third Amended Complaint. In this complaint, Plaintiff sought to recover for the same alleged vio...

Excerpt: ... of the petition to compel arbitration is without prejudice in the event that the Supreme Court, in theLawson case, rules that the part of a PAGA case seeking victim-specific relief in the form of unpaid wages is subject to arbitration pursuant to Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 (Esparza). Grounds for Ruling This is a PAGA-only action based primarily on alleged minimum wage and rest break violations. Plaintiff alleges vi...

Excerpt: ... defendant may demur to a pleading on the basis “[t]here is another action pending between the same parties on the same cause of action.” The above provision codifies “the common law plea in abatement.” The “rule of exclusive concurrent jurisdiction,” which is the principle Defendant seeks to enforce herein, is similar (see People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4 th 760, 770), and may be raised by demur...