Excerpt: ...tion #5 and 46 do not exist. The Declaration of Darren Ashby, defendant's employee, admits in ¶7 that plaintiff's fitness machine was designed to shut down if it detected a “rogue” signal from the customer's Wi-Fi system. This fact creates a triable issue as to whether defendant violated Civil Code §1770(a)(5) by representing that defendant's goods had characteristics, uses or benefits that they did not have when defendant advertised that t...

Excerpt: ...ed Complaint adding a PAGA claim (Labor Code § 2699). On May 9, 2017, Plaintiff requested dismissal of both her class and individual claims, without prejudice. Both requests were granted and Plaintiff was left with her PAGA claim only. Defendant now moves for summary judgment, asserting that because she dismissed her individual claims, Plaintiff is without standing to pursue the PAGA claims. The motion raises a single, legal issue: If a plaintif...

Excerpt: ...v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) But allegations consisting of contentions, deductions, or conclusions of law are not. (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 681; Kiseskey v. Carpenters' Trust for So Cal. (1983) 144 Cal.App.3d 222, 228.) Pursuant to Government Code section 815, subdivision (a), a public entity is not liable for an injury, whether such injury arises out of an act or ...

Excerpt: ...dicial notice of Craig J. Beauchamp's biography page on Plaintiffs' former counsel's website, the stipulation regarding their former counsel's suspension, and records in four other matters in which Plaintiffs have filed actions against storage companies. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 21.) Business and Professions Code section 17200, et seq. (“UCL”) prohibits unfair competition, including unlawful, unf...

Excerpt: ...) He brings a putative wage- and-hour class action on behalf of all non-exempt employees who worked for Defendant at any time in the four years before the case was filed. (Id., ¶ 4.) The complaint alleges six causes of action: principal claims for overtime violations, meal period violations, and rest period violations, as well as derivative claims for wage statement violations, UCL violations, and PAGA. Defendant demurs on two grounds: that the ...

Excerpt: ...limitations given that Cross- Complainant Bhandari waited approximately 30 months after the lawsuit was filed to file the Cross-Complaint against Howard. A claim for equitable or partial or comparative indemnity does not accrue, and the statute of limitations does not commence to run, until the indemnity claimant has suffered an actual monetary loss through the payment of a judgment or settlement [not at the time plaintiff's injury was inflicted]...

Excerpt: ...luded 538 employees, but Defendant's discovery responses indicated that 34% of the class was “severed,” leaving 355 employees. Counsel's damages analysis is based on workweeks, and the number of workweeks is determined in reference to these 355 employees. However, per the amended Joint Stipulation of Settlement (Supp. Campbell Decl., Exhs. 1, 3), the class still numbers 538. (Id., § 3.04(e).) Does the class actually number 355 rather than 53...

Excerpt: ...vil Procedure section 437c, subdivision (d) requires that the parties set forth admissible evidence, though any objections based on failure to comply with this subdivision if not made at hearing are deemed waived. (Code Civ. Proc., § 437c(d).) A Plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto...

Excerpt: ..., Defendant American Multifamily, Inc. (“AMF”) has demonstrated the existence of a written arbitration agreement and that Plaintiff HMS Drywall and Painting, LLC (“HMS”) has refused to arbitrate by commencing this action in court. (See Hyundai Amco America, Inc. v. S3H, Inc.(2014) 232 Cal.App.4th 572, 577.) The arbitration agreement is contained in the “Subcontract” between AMF and HMS, dated November 8, 2017. (Kim Decl.; Ex. A.) The ...

Excerpt: ...tle holder of the vehicle, was present at the inspection site and had consented to the inspection prior to July 8, 2019. (Hansen Decl., ¶ 21.) Plaintiff contends the inspection was cancelled because of a misunderstanding regarding whether the keys to the vehicle were available. (Pastore Decl., ¶¶ 9-11, and 13, Exh. 3.) Plaintiff offered no explanation as to why Plaintiff's counsel cancelled the inspection without confirming the keys were not a...

Excerpt: ...�[a] motion to remove a mechanic's lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.” (Id. at 318). Although technically different than a motion to expunge lis pendens, as explained by the Howard court, the applicable standards are the same: “The inquiry upon such motion is likewise lim...

Excerpt: ...scription information from another source. However, insofar as Defendants seek to prevent Plaintiffs from seeking information about Ms. Callaway's alleged use of pain- killing narcotics through other means (i.e., at her upcoming deposition), the Court declines to rule at this time. GROUNDS FOR RULING I. Factual Background This legal malpractice action centers on legal advice Ms. Callaway provided concerning the structuring of Plaintiffs' direct c...

Excerpt: ... a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” The request is denied. To support punitive damages, the Complaint must allege facts of Defendant's oppression, fraud, or malice. (Civ. Code § 3294(a).) “Malice” is defined as conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful an...

Excerpt: ... subject of the action, and tending to render the judgment ineffectual.” CCP § 526(a)(3). “[A]s a general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” White v. Davis (2003) 30 Cal.4th 528, 554,...

Excerpt: ...ability of the information. The application must show the following elements:  right to possession, i.e., plaintiff must show the evidence forming the basis of a claim for possession; if based on a written document, the document should be attached (Code Civ. Proc., § 512.010, subd. (b)(1))  defendant's possession, i.e., how it came into possession of the property  defendant's wrongful detention  defendant's reason for possession, i.e...

Excerpt: ...dicial review of an arbitration award is extremely limited. Singerlewak LLP v. Gantman (2015) 241 Cal.App.4th 610, 615. An arbitrator's decision is not reviewable for errors of fact or law, regardless of whether such error appears on the face of the award and causes substantial injustice to the parties. Id. at pp. 615-616. Parties who enter into arbitration agreements are presumed to know the arbitrator's decision will be final and binding. Id. a...

Excerpt: ...ing evidence that the defendant has been guilty of oppression, fraud, or malice, as those terms are defined in subdivision (c) of the Code section. Both “malice” and “oppression” require either an intent to injure, or evidence of “despicable conduct.” Id. at subds.(c)(1) & (2). Regarding “fraud,” Plaintiff must allege “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the int...

Excerpt: ...eclared that “trial courts have inherent authority to stay malpractice suits, holding them in abeyance pending resolution of underlying litigation.” See Adams v. Paul (1995) 11 Cal.4th 583, 593 (quoted in Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1211). Defendants' contention is that the appeal of the underlying judgment in this case could either substantially impact or moot altogether the claims made by Plaintiffs in this case. Plain...

Excerpt: ...roduction of three categories of documents:  all documents and records pertaining to plaintiff's application for employment, employment, and separation from employment, including employment applications, resumes, letters of reference, interview notes, background checks, offers of employment, employment agreements, personnel file, performance evaluations, documents pertaining to performance, documents pertaining to discipline, incident reports,...

Excerpt: ...e. The responses comply with the requirements of Code of Civil Procedure section 2033.220, Subdivision (c). The plaintiff complains that the defendants or their attorney had access to information (such as the CHP Report) that was readily available and intentionally chose not to use it before responding. But a court cannot order a further response to a request for admission that has been unqualifiedly denied, even if the facts involved are unquest...

Excerpt: ...otion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim. Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1165. An act in furtherance of a person's right of petition or free speech under the United States or Ca...

Excerpt: ...ll have 15 days leave to amend. Second Cause of Action for Breach of Contract The elements for a breach of contract are: (i) the existence of a contract; (ii) plaintiff's performance or excuse for nonperformance; (iii) defendant's breach; and (iv) resulting damage to plaintiff. (See First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) A written contract may be pleaded either by its terms—set out verbatim in the complaint or a...

Excerpt: ..., FSB (2010) 185 Cal.App.4th 1018, 1023; accord Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) The SAC also fails to state facts sufficient to constitute this cause of action. It fails to allege “conduct that is so outrageous that it exceed[s] all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, internal quotation marks omitted.) Nor does it allege “emotional distress of s...

Excerpt: ...e are not described. 2. There is insufficient information to evaluate whether there were substantial common questions for class certification. The alleged non-compliant policies are not described (see above) nor is the manner of defendant's allegedly illegal conduct described. 3. The class release appears to be extremely broad, releasing claims that go beyond those alleged in this case. While the named plaintiff may freely release her own claims,...

Excerpt: ...have 15 days leave to amend. Specific to a fraudulent concealment claim, the plaintiff must allege: (1) the defendant concealed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed fact; and (5) as a result of the c...