Excerpt: ...rivate Attorneys General act (“Plaintiff”), filed a Complaint against Defendant Belshire Environmental Services, Inc. (“Defendant”). (ROA 2). The Complaint alleges the following 11 causes of action: 1. Violation of Labor Code §§ 510 and 1198 (Unpaid Overtime); 2. Violation of Labor Code §§ 226.7 and 512(a) (Unpaid Meal Period Premium s); 3. Violation of Labor Code § 226.7 (Unpaid Rest Period Premiums); 4. Violation of Labor Code §�...

Excerpt: ... Failure to Provide Meal Periods; 2. Violation of PAGA for Failure to Provide Rest Periods; 3. Violation of PAGA for Failure to Pay Minimum Wages; 4. Violation of PAGA for Failure to Pay Overtime Wages; 5. Violation of PAGA for Failure to Provide Accurate Itemized Wage Statements; and 6. Violation of PAGA for Fai lure to Timely Pay Wages at Separation Plaintiff alleges she was employed as a non -exempt worker for Defendant, a nonprofit organizat...

Excerpt: ...10 causes of action for: 1. Failure to Pay Overtime; 2. Failure to P ay Minimum Wages; 3. Failure to Provide Compliant Meal Breaks; 4. Failure to Provide Compliant Rest Breaks; 5. Failure to Provide Itemized Wage Statements; 6. Failure to Maintain Accurate Employment Records; 7. Failure to Pay Wages Timely During Employment ; 8. Waiting Time Penalties; 9. Failure to Indemnify All Necessary Business Expenses; and 10. Unfair Business Practices. On ...

Excerpt: ... action is viable because it relies upon allegations of a breach of a duty owed to the minor Plaintiff. As noted in the authority Defendant cit es in support of the demurrer, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other leg al duty and the emotional distress is proximate...

Excerpt: ...led a statement that would file an amended answer by the hearing date. As of the day before the hearing, the Court has no record of the amended answer having been filed. The Court takes Defendant's failure to oppose the demurrer as a concession, and on that basis sustains the demurrer. Defendant shall file an amended answer by April 2, 2024. For a complete record, Defendant shall also file by April 2 its original answer as no such filing can be f...

Excerpt: ...r Competition Law. Defendant challenges the pleading on the ground that plaintiff has failed to allege a defect in materials or workmanship, as required under 13 C.C.R. §2037(b)(2). Plaintiff relies on 13 C.C.R. §2037(b)(1), which discusses design issues, but the extended warranty is found only in 13 C.C.R. §2037( b)(2) and requires a defect in materials or workmanship. Plaintiff's Second Amended Complaint adds legal arguments as to why the Em...

Excerpt: ...est for judicial notice filed in reply (ROA 24) is DENIED as immaterial to the Court's decision. Statute of Limitations Defendants contend Plaintiff's complaint for legal malpractice and “(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of prof essional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence sh...

Excerpt: ...ckich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) To the extent Plaintiff is requesting that the court take judicial notice of the fact that these cases exist, the request is denied as irrelevant to the issue presented in the demurrer. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [noting that the court may take judicial notice of a recorded deed, but declining to do so where deed was not relevant].) Special Demurrer Sp...

Excerpt: ...Pay Overtime Wages; 3. Failure to Provide Meal Periods; 4. Failure to Permit Rest Breaks; 5. Failure to Reimburse Business Expenses; 6. Failure to Provide Accurate Itemized Wage Statements; 7. Failure to Pay All Wages Due Upon Separation of Employment; and 8. Violation of Business & Professions Code §§ 17200, et seq. On Oct ober 23, 2019, Plaintiffs filed the First Amended Complaint adding two causes of action for Unlawful Deduction from Wages...

Excerpt: ..., 986. PAGA settlements are subject to trial court review “to determine whether [they are] fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77. The cour t has reviewed and considered the papers filed in support of plaintiff's motion for approval of a $600,000 PAGA set...

Excerpt: ...ed in subdivision (b), actions brought under the provisions of thi s chapter shall be set for trial at the earliest possible date and shall take precedence over all other cases, except older matters of the same character and maters to which special precedence may be given by law. “(b) Any action brought under the provisio ns of this chapter in which the plaintiff seeks any relief, in addition to a declaration of rights and duties, shall take su...

Excerpt: ...ings is based on the claim that there is no statutory ba sis for the claim and therefore no cause of action can be stated against the City under Government Code section 815. A motion for judgment on the pleadings serves the same basic purpose as a demurrer. It asks the court to determine whether as a matter of law a cause of action has been stated. (See Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 743- 744.) However, it may not be used as...

Excerpt: ...award of reasonable attorneys' fees and costs pursuant to Civil Code section 1717, as they are authorized by the Promissory Note at issue in this case. Plaintiff asserts that the motion is timely; that the lodestar applies; that 172.6 hours of attorney time was expended for this action which commenced in October 2020 through August 2023 by Sean Cooney, principal of Cooney Law PC, and is reasonable as this case was aggressively defended until coun...

Excerpt: ... Fourteenth Amendment, and Third Cause of Action for Civil Harassment. D efendant contends that although the caption of Plaintiff's Complaint appears to allege violations of the 4th and 14th Amendments, the body of the Complaint states no facts regarding any such violations, and that actions were taken in accordance with the OC Municipal Code. Defendants also contend that Code of Civil Procedure section 527.6 concerns harassment, and that Plainti...

Excerpt: ...6 Cal.4th 969, 986. PAGA settlements are subject to trial court review “to determin e whether [they are] fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77. The cou rt has reviewed and considered the papers filed in support of plaintiff's motion for approval of a $45...

Excerpt: ... set for this day and Plaintiff has not sought ex parte relie f to continue Defendants' Demurrer and/or Motion to Strike portions of FAC. The court declines to continue the hearing on the Demurrer and Motion to Strike set for this day. The unopposed Request for Judicial Notice is granted. “The court may take judicia l notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 22...

Excerpt: ...s Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other i tems subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.Ap p.4th 1746, 1749.) “In our examination of the complaint we are guided by the well settled principles governing the testing o...

Excerpt: ...operty. ISSUE NO. 2: Summary Adjudication is proper as to Plaintiff's Second Cause of Action for Premises Liability because Defendant had no actual or constructive notice of a dangerous condition on Defendant's property. Initially, the Court notes that the instant motion and moving papers were filed and served on February 8, 2024, which is only 42 days before the noticed hearing date of March 21, 2024. 75 -days' notice is required on a motion fo...

Excerpt: ...n their opposition, cross -defendants have withdrawn the following aff irmative defenses: 14, 25, 26, 27, 28, 29, 30, 55 and 56 (i.e., 55(2)). Becerra's demurrer to affirmative defenses 14, 25, 26, 27, 28, 29, 30, 55 and 56 (i.e., 55(2)) is thus overruled as moot. For the following reasons, Becerra's demurrer to affirmativ e defenses 2, 5, 6, 8, 9, 11, 12, 15, 16, 17, 21, 22, 24, 32, 33, 34, 35, 36, 37, 41, 42, 44, 46, 47, 48 and 50 is sustained ...

Excerpt: ...y judgment is to provide courts with a mecha nism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “A party may move for summary judgm ent in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code ...

Excerpt: ...berts dba Image Auto Group; 2. that all parties to this acti on are hereby restrained from instituting or further prosecuting any other proceeding in any other court in the State of California, or any other jurisdiction, affecting the rights and obligations between the parties to this interpleader; 3. that Hudson b e dismissed with prejudice from the instant action, and any legal actions pending against the bond proceeds; 4. that Hudson be awarde...

Excerpt: ...[same].) Specifically, defendants failed to meet their initial burden as to Noticed Issue No. 1 because the issue fails to completely dispose of any cause of action. (See Code Civ. Proc. § 437c, subd. (f)(1).) Defendants met their initial evidentiary burden as to Noticed Issues No. 3. & 5, Even if defendants had met their initial burden as to each noticed issue, plaintiffs met their shifted burden to show triable issues of material fact. (See C...

Excerpt: ... of Civil Procedure section 425.16(g) provides: “All discovery proceedings in the action sh all be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that s pecified discovery be conducted notwithstanding this subdivision.” “If the plaintiff makes a ...

Excerpt: ...lves a high - end residential lease. Plaintiffs filed a 12-count complaint against the property owner, Yuan Mu, real estate agent Nancy Milne, and Ascendant International, Inc., dba Re/Max Luxury Properties. It includes causes of action for breach of contract, common counts, fraud, and dec laratory relief. Plaintiffs complain that the house they rented had numerous issues and Yuan Mu refused to fix them. Yuan Mu filed a 13 -count cross -compla...

Excerpt: ...��If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” Co de of Civil Procedure section 2025.480(b) states, in relevant part: “[t]his motion [motion to compel answers or pro...

Excerpt: ... for deposition. (Id. at ¶¶ 3 -4.) On Apri l 26, 2023, Defendant served objections to the Notice of Deposition. (Id. at ¶ 7.) Plaintiff sent a meet and confer letter on May 11, 2023 discussing Defendant's objections and the particular categories of examination and document requests. (Id.) Defen dant provides no evidence that it responded to the May 11, 2023 letter. (See Major Dec.) GM has evidently agreed to produce a witness for deposition on...

Excerpt: ...ion).” But the reply attempts to mislead the court and ob tain discovery plaintiff's counsel knows this court has denied in prior cases. Indeed, and contrary to its initial assertion, this motion is all about the request to produce all the documents in the General Motors universe about the Silverado vehicle. Th e final sentence of the reply gives the game away: “Based on the foregoing, GM must be ordered to produce its PMQ for deposition on ...

Excerpt: ...5, 162, 164, and 238 -239). The court GRANTS the motions pursuant to CCP §§ 2031.280, 2031.300, a nd 2031.320. The court first notes that none of the documents that were produced in response to the RFP were produced to the court for its review. Based upon the arguments however, it appears that some redacted documents were produced in the responses. Defendants state that many of the redacted documents were not responsive to the requests, nor to...

Excerpt: ...§ 2031.310, subd. (b)(1).) “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved of, on other grounds, by Williams v. Superior Court (20...

Excerpt: ...ve of court. Sections 2032.310 and 2032.3 20 provide for additional physical examination with leave of court if good cause is shown. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249 -1256.) Defendant has demonstrated there is good cause to allow additional examinations. Plaintiff listed 72 injuries in response to Form Interrogatory 6.2 and stated he consulted with 15 different providers in response to Form Interrogatory 6.4, including a ...

Excerpt: ... Company, Ford Motor Credit Company, LLC and Safeco Insurance Co mpany of America join the petition. The petition is granted in part and denied in part as discussed in detail below. The petition is granted as to Defendant Autonation Ford Tustin but denied as to the 5th cause of action for violation of the CLRA to the extent this claim seeks public injunctive relief. The joinder is granted as to Defendants Ford Motor Company, Ford Motor Credit Com...

Excerpt: ...f the petition. Code Civ. Proc. § 1290.6. Respondent Shrier has not filed a r esponse to the petition. Nor was any opposition filed despite the prior motion for continuance, and continuance granted, for purposes of filing an opposition. A petition to confirm an arbitration award must: (1) set forth the substance of or attach a cop y of the arbitration agreement; (2) set forth the name of the arbitrators; and (3) set forth or attach a copy of...

Excerpt: ...omplaint was filed May 26, 2020. (ROA 2. ) The motion for summary judgment is supported by the declaration of John Battista, a licensed Certified Access Specialist (CASp). He visited the shopping center on May 20, 2022, and found various violations of the Americans with Disabilities Act and the Uniform Building Code, which he detailed in his report. In opposition to the motion, defendant filed a declaration from Jong Park, also a licensed CASp...

Excerpt: ...tions in the pleading o r the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404 -05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demu rrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from ...

Excerpt: ...nswer. (ROA Nos. 3233; see ROA No. 23.) Code of C ivil Procedure section 472 provides: “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, ….” In Barton v. Khan (2007) 157 Cal.App.4th 1216, a shareholder who was a former emplo...

Excerpt: ...intiff. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 [Biakanja factors], 406 [auditor's liability “is confined to the client”]; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 580- 586 [accountant to partnership owed no professional duties to individual partners ].) Plaintiff asserts Welch is liable for aiding and abetting the other defendants' breaches of fiduciary duty, not for breaching any fiduciary duty of ...

Excerpt: ...ore affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty...

Excerpt: ...is divests the opinion of the Court of Appeal of binding or precedential effect, it may still be cited for “potentially persuasive value.” (See Cal. Rules of Ct. rule 8.1115(e)(1).) Based on the existing persuasive authority, including the Court of Appeal's decision in Dhital, the court concludes Plaintiff's fr audulent concealment claim is not barred by the economic loss rule as a matter of law. If the California Supreme Court reaches th...

Excerpt: ...ting sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subds. (a) -I.) Misuse of the discovery process includes, but is not limited to, using a discovery method in a manner that does not comply with its specified procedures, employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden, failing to submi...

Excerpt: ...nly objections. (Jenkins Decl. ¶ 4, Ex. B.) Defendant initiated the meet and confer process on 11/01/2023 and demanded further responses and responsive documents no later than Monday 11/13/2023. (Jenkins Decl. ¶ 5, Ex. C.) On Thursday 11/09/2023, Plaintiff asked for a 30- day extension to respond. (Jenkins Decl. ¶ 6, Ex. D.) Defendant compromised by offering a three -day extension to Thursday 11/16/2023. (Jenkins Decl. ¶ 7, Ex. E.) Plaintiff ...

Excerpt: ...accept service if the process server identifies himself, tells the person they are being served, and leaves the papers as close as possible to the person. (Trujillo v. Trujillo (1945) 71 CA2d 257, 260.) Here, Tuttle announced that he was serving Defendant and left the papers on Defendant's front doorstep. Thus, Tuttle's service complied with the statutory requirements. The Court CONTINUES the Motion to allow Defendant an opportunity to submit ev...

Excerpt: ...business in California, nor ever had any offices in California, it has no employees in California, it has no customers outside of Florida, and it does not advertise outside of Florida. Defendant's request for judicial notice as to Exhibit B (Plaintiff's Complaint) is GRANTED. (Evid. Code, § 452(d).) The request as to Exhibit C i s DENIED, as the material is not relevant to a resolution of the issues raised in this Motion. (State Compensation Ins...

Excerpt: ...an be raised at any time (even for the first time on appeal). It can be raised: — by demurrer to the complain t where the defect appears on the face of the complaint or from matters judicially noticeable (CCP § 430.10(a)); — by motion to strike (CCP §§ 435, 437); — by motion for judgment on the pleadings (CCP § 438); — by motion for summary judgment (CCP § 437c); or — as an affirmative defense in the answer. [Greener v. Workers...

Excerpt: ...urt if good cause is shown. (See Shapira v. Superior Court (1990) 224 Cal.App .3d 12491256.) Plaintiff objects to the examination because Plaintiff has already agreed to an examination by Defendant's orthopedic expert on 3/27/24 and a remote mental examination on 3/18/24. Plaintiff also contends the examination must be conducted within 75 miles of Plaintiff's residence, which is in North Carolina. Defendant has shown good cause for its scar revis...

Excerpt: ...#39;s breach, and (4) the resulting damages to the plaintiff.” (D'Arrigo Bros. of Calif ornia v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) As to the First Cause of Action, Plaintiff has demonstrated (1) the existence of the Loan Agreement with Media Graphix, (2) Plaintiff's performance, (3) Media Graphix breach of the L oan Agreement, and (4) resulting damages in the amount of $364,874.72. (Undisputed Facts 1, 5, 6, 10...

Excerpt: ... be awarded reasonable attorney's fees and costs.” “This language has been interpret ed to allow recovery of not only litigation costs, but also reasonable attorney fees and costs expended in prelitigation alternative dispute resolution (ADR) pursuant to the Davis -Stirling Act. [Citation.]” (Rancho Mirage Country Club Homeowners Assn. v. H azelbaker (2016) 2 Cal.App.5th 252, 258.) A homeowner association's complaint seeking relief in the f...

Excerpt: ...cts sufficient to constitute a cause of action and uncertainty. Initially, the op posing points and authorities is over the 15- page limit under California Rules of Court, rule 3.1113(d). The Court disregards the last three pages (pages 21 -23). (California Rules of Court, rule 3.1300(d).) First Cause of Action for Disability Discriminati on in Violation of the FEHA A prima facie case of disability discrimination requires a plaintiff to show that...

Excerpt: ...ly noticed. ( Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 796 [117 Cal.Rptr. 305, 527 P.2d 1153]; Code Civ. Proc., §§ 430.30, 430.70.) “Accordingly, a complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” ( Iram Enterprises v. Veditz (1981) 12 6 Cal.App.3d 603, 608 [179 Cal.Rptr. 1].) Taking judicial notice of a document is not the same as accepting the truth of its co...

Excerpt: ...et seq., (6) quiet title, and (7) injunctive relief. I. All filings were untimely. As an initial matter, the Demurrer, Opposition, and Reply were all untimely. First, the First Amended Complaint was served by email on November 8, 2022. Thus, the declaration for the automatic 30 -day extension was due December 8, 2022. Defendant did not file its declaration for an extension until a month later on January 8, 2023. This was untimely. Since the dea...

Excerpt: ...nses to Defendant ClearChoice Management Services, LLC's Form Interrogatories —Employment, Set One, without objections and within 30 days of service of the notice of ruling. Plaintiff Susanne Feusi is ORDERED to serve full, complete, and verified responses to Defendant ClearChoice Management Services, LLC's Special Interrogatories, Set One, without objections and within 30 days of service of the notice of ruling. Plaintiff Susanne Feusi is ORD...