Excerpt: ...egations of the Operative Complaint Defendant Merchants & Medical Credit Corporation, Inc. (“MMCC”) is a Michigan corporation engaged in the business of collecting defaulted consumer debts in California. (Complaint, ¶ 11.) Defendants Cairnduff and Hresko are Michigan residents who plaintiff alleges are employees, agents, officers, and/or directors of MMCC and are themselves “thirdparty debt collectors” under the RFDCPA. (Id. at ¶¶ 12�...

Excerpt: ...ly reflect their pay period start dates. (Id. at ¶ 23.) Plaintiff also suffered an on‐the‐job injury on February 2, 2016. (Id. at ¶ 39.) He alleges that defendant terminated him without making any attempt to accommodate his resulting disability. (Id. at ¶¶ 39‐44.) On December 21, 2016, plaintiff filed this action, asserting class claims for (1) violation of Labor Code section 226 and (2) penalties under the Private Attorneys General Act...

Excerpt: ...Plaintiff began working for defendant as an hourly employee on September 16, 2015, but was not provided with accurate itemized wage statements. (Id. at ¶ 8.) For example, wages identified as “Shift Reg 10” were paid at the rate of $17.32 per hour and overtime hours identified as “Shift O/T 3” were paid at $25.99 per hour, but wage statements reflected that both types of wages were paid at $15.75 per hour. (Ibid.) Plaintiff alleges that o...

Excerpt: ...proval of his attorney fees, costs, and enhancement award. Plaintiff's motion is unopposed. I. Legal Standard for Approving a Class Action Settlement Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court's broad discretion.” (Wershba v. Apple Computer, Inc...

Excerpt: ... 27, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows: I. INTRODUCTION This is a putative class action. According to the allegations of the Second Amended Complaint (“SAC”), filed on April 23, 2018, plaintiffs Thomas H. Padilla, Sr. and Darlene Padilla (collectively, “Plaintiffs”) bring this action seeking restitution for property owners in defendant City of San Jose (the “City”) for amounts pai...

Excerpt: ...ocedure, done endoscopically. (First Amended Complaint [“FAC”] at ¶ 14.) After being cleared for surgery, Kessler underwent a right carpal tunnel release procedure with the use of a Manos Device at defendant Spine and Sports Surgery Center (“Surgery Center”). (Id. at ¶ 15.) Prior to surgery, Dr. Yeh allegedly failed to disclose to Kessler that: (1) he was going to use the Manos Device; and (2) he was an investor in the Manos Device and ...

Excerpt: ...he allegations of the SAC, Plaintiff is the owner and voting member of fifty percent of Casa Alondra Mobile Home Park, LLC (the “LLC” of “CAMPH”) and brings the instant action in both a derivative and representative capacity on behalf of the LLC and in his own right as an intended beneficiary. (SAC, ¶ 1.) On June 9, 2014, Defendants undertook to provide legal services for the LLC and its three named members until they were discharged on ...

Excerpt: ...facts to allow the Court to conclude that he would be able to amend his complaint to state a viable claim, or to support any argument that the demurrer was not properly sustained. By virtue of the demurrer filed by Defendant that challenged Plaintiff's complaint, it was not reasonable for Plaintiff to expect a settlement and then fail to oppose the demurrer and choose not to appear at the hearing. Moreover, Defendant presented evidence that it co...

Excerpt: ...ckground This is an action for defamation and intentional interference with contractual relations. Paladin is a shareholder and the president of APTFrame and Arcsona, Inc. (“Arcsona”). (5AC, ¶¶ 1‐2, 12.) Paladin was also employed by APTFrame as a Senior Program Manager for NetApp pursuant to a Statement of Work. (Id. at ¶ 12.) APTFrame, defendant Global Anchorage, Inc. (“GA”), and Appirio, Inc. (“Appirio”) each provided temporary...

Excerpt: ...he first motion is a motion for summary judgment (“MSJ”) directed at the third cause of action for Fraud and Deceit (Promise Without Intention to Perform) in the Second Amended Complaint (“SAC”) of Plaintiff Marsha Armstrong, M.D. (“Armstrong”). The fraud claim is Plaintiff Armstrong's only remaining cause of action as the others were summarily adjudicated in Trepel's favor pursuant to this Court's Order dated June 20, 2016. That same...

Excerpt: ...her non‐Qualified Person via any platform, including identification of the non‐Qualified Person, by 5:00 P.M., July 31, 2018. Plaintiff failed to comply with paragraph 25 of the protective order to attempt informal resolution of the dispute and provide written objections stating the reasons for objection to Defendant's designation of AEO. The protective order does not specify that reasons be stated for each contested document. The Court inter...

Excerpt: ...erns Defendant's noncompliance with discovery orders filed on September 15, 2017, granting Plaintiff's motions to compel initial responses to its first sets of form interrogatories and request for production of documents. The Court originally ordered Defendant to serve complete verified responses, without objections, within 45 days. Defendant did not comply, and Plaintiff consequently filed a motion to strike Defendant's answer and associated req...

Excerpt: ...hrough its current counsel, who was not counsel of record when the discovery was initially served, essentially does not oppose the motion on its substance, and apparently acknowledges that no responses have been served. Counsel objects to the monetary sanction requested as “discretionary” (which it is not, absent certain required findings), and a “patently unreasonable and excessive.” The Court agrees with the latter contention – the am...

Excerpt: ...�), Acuity Ventures II, LLC (“Ventures II”), Eric Hardgrave (“Hardgrave”), and Larry Hootnick (“Hootnick”).1 Plaintiffs allege AMC, a general partner of the Partnership, as well as Ventures I and Ventures II were formed for the purpose of early‐stage investment in technology companies. They claim Hardgrave defrauded them into investing in these venture funds and that he and Hootnick thereafter mismanaged the funds throughout their o...

Excerpt: ...and exchanged confidential communications” subject to an oral joint defense agreement as part of a regulatory action, and that oral agreement was breached by the Lunardis and GCI, resulting in damage to Swallow. (See FAXC, ¶¶ 33, 82‐84.) In response to discovery seeking persons with knowledge of the alleged breach, Swallow identified his attorney, Allen Ruby. (See Harrington decl. in opposition to motion to quash, ¶ 2.) On February 21, 201...

Excerpt: ...tively, “Defendants”) arises from the fact Defendants own, manage, or allow to continue, a marijuana business. According to the allegations of the Complaint, Coachella is a marijuana distribution business that has operated at 2142 The Alameda in San Jose, California (“the Property”) since May 2017. The other defendants are all in some way related to the ownership or operation of Coachella. Foxx and Nemcov are owners, operators, or manager...

Excerpt: ... statement which was contained in Plaintiff's moving papers. “The objections made assumed that Dr. Lowenberg performed surgery on April 29, 2013 when it has been clearly demonstrated that this was impossible unless Dr. Lowenberg was insane or under the influence or attempting to commit a criminal assault”. (Motion 4:1‐ 3) The Court admonishes Plaintiffs' counsel that these sort of statements are unprofessional, disrespectful, and very inapp...

Excerpt: ...s motion for summary adjudication is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the second, third and fourth causes of action and DENIED as to the first cause of action. With respect to the first for breach of contract, the Court finds that triable issues of material fact exist regarding the terms of the agreement between the parties, including whether the provisions alleged to have been incorporated by reference in PRT's pur...

Excerpt: ...ential Care Facility.2 There was a water tower on the property that supplied well water to the facility. Plaintiff leased space on the water tower to Defendants for the purpose of affixing telecommunications equipment and infrastructure. Plaintiff alleges Defendants unplugged a heating coil on the water tower thereby causing the pipes to freeze. As a result, Plaintiff suffered $3,000,000 in damages and had to shut down the nursing home. Plaintiff...

Excerpt: ...ome in Discovery Bay, California.1 When the subprime mortgage crisis unfolded the following year, Miley could not sell his home to pay back the loan. Miley resigned from Ross's construction company in 2009 and has not made any loan payments since. Ross seeks to recover the principal amount of $600,000 as well as $336,023.98 in interest. In the second amended complaint (“SAC”), Ross asserts causes of action against Miley for: (1) breach of ora...

Excerpt: ...TATIVE RULING RE: DEMURRER TO PLAINTIFF'S AMENDED STOCKHOLDER DERIVATIVE COMPLAINT; MOTION TO SEAL PLAINTIFF'S FIRST AMENDED COMPLAINT; MOTION TO SEAL EXHIBITS 25‐26, 28‐33, 36‐37, AND 39 TO DEFENDANTS' REPLY MEMORANDUM IN SUPPORT OF DEMURRER TO FIRST AMENDED COMPLAINT The above‐entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on July 20, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruli...

Excerpt: ... now issues its tentative ruling. In the Complaint, filed March 14, 2018, Plaintiff alleges that Crowdstar Inc.'s directors, controlling shareholders, and their representatives breached their fiduciary duties in various ways. Plaintiff alleges six causes of action: (1) Breach of fiduciary duty; (2) Aiding and abetting breach of fiduciary duty; (3) Intentional interference with contract; (4) Intentional interference with prospective economic advan...

Excerpt: ...8, at 11:00 a.m. in Department 5 (Complex Civil Litigation), the Honorable Thomas E. Kuhnle presiding. The Court now issues its tentative ruling as follows: I. INTRODUCTION This action arises out of alleged trade secret misappropriation. The First Amended Complaint, filed on January 19, 2018, sets forth the following causes of action: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) unfair business practices;...

Excerpt: ...that order. Plaintiffs now move for final approval of the settlement and approval of their attorney fees, costs, and enhancement awards. Their motion is unopposed. I. Legal Standard for Approving a Derivative Settlement “A court reviewing a settlement agreement considers whether the proposed settlement is fair and reasonable in light of all relevant factors. [Citations.] A court reviews the settlement of a derivative suit as a means of protecti...

Excerpt: ... Background According to the operative Second Amended Complaint (“SAC”), defendant advertised its Apple TV 2.0 and 3.0 products as having “HD” or high definition capabilities, when in fact the devices' performance did not meet the industry‐accepted definition of HD, developed by the Advanced Television Systems Committee (“ATSC”). Specifically, Apple did not disclose that Apple TV 2.0 “only supported the H.264 codec with a Main Pro...

Excerpt: ...p Subscriptions with Apple, and Apple both delivers and charges subscribers for associated content. (TAC, ¶ 21.) However, Apple does so without complying with various provisions of Business & Professions Code sections 17600‐ 17604, which govern automatic renewal and continuous service offers to consumers in California (the “Automatic Renewal Law” or “ARL”). In order to make purchases from Apple's online store, consumers are first requi...

Excerpt: ...Realty Investments, Inc., dba Insight Realty Company (“Insight”) and its manager and co‐founder Vincent Woo (“Woo”) (collectively “Defendants”) arises from Defendants' purported scheme to destroy Plaintiffs' business. According to the allegations of the First Amended Complaint (“FAC”), Plaintiffs were in negotiations to purchase real property in downtown Mountain View from Kent Yu (“Yu Transaction”). (FAC at ¶ 14.) Plaintif...

Excerpt: ...to the Shadafni Action, defendants Sharon Ajlouni and Karen Ajlouni (collectively, “Ajlounis”) filed a lawsuit against Hawari, Searles and SCI in Santa Clara County Superior Court, case number 1‐13‐CV‐242018 (“Ajlouni Action”). (Complaint, ¶¶6 – 8.) Defendant Michael Prozan (“Prozan”), a California licensed attorney, represented Shadafni and the Ajlounis in their respective actions against Hawari and others. (Complaint, ¶¶...

Excerpt: ...he purchase of a home. According to the allegations of the FAC, Plaintiff has difficulty understanding and managing his own financial affairs and therefore his son and daughter‐in‐law, Defendants, offered to help him purchase a home. (FAC, ¶ 1.) On March 24, 2011, Plaintiff and Defendants purchased a residential property (the “Property”) located in Gilroy. (Id., ¶ 2.) When the Property was purchased, title was taken by the parties as jo...

Excerpt: ...es I”), Acuity Ventures II, LLC (“Ventures II”), Eric Hardgrave (“Hardgrave”), and Larry Hootnick (“Hootnick”).2 Plaintiffs allege the Management Company, a general partner of the Partnership, as well as Ventures I and Ventures II were formed for the purpose of early‐stage investment in technology companies. They claim Hardgrave defrauded them into investing in these venture funds and that he and Hootnick thereafter mismanaged the...

Excerpt: ...entered into an agreement with after the merger with Aemetis was terminated. As alleged in the third amended complaint (“TAC”), Edeniq was formed in 2008 and is the inventor and exclusive licensor of valuable technology that converts corn fiber into cellulosic ethanol. (TAC, ¶ 8.) This technology would be worth hundreds of millions of dollars if approved by the U.S. Environmental Protection Agency (“EPA”) but Edeniq was consistently unab...

Excerpt: ... Both motions are GRANTED. The Court finds the objections asserted are not supported, and that the responses are not responsive and do not comply with the requirements of Code of Civil Procedure §§2031.210‐2031.250. The moving papers establish good cause for production of the requested documents under §2031.310(b). Verified further responses which comply with §§2031.210‐2031.250 must be served by Arriaga (Line 4) and by Arriaga & Associa...

Excerpt: ...d that Defendant had a 50% ownership interest, Katherine Lee had a 10% interest, Jannelle Yoon had a 15% interest, Peter Lee had a 10% interest and Plaintiff had a 10% interest. (See complaint, ¶ 9.) The agreement also prohibited the transfer or disposition of any interest of the subject property without written consent of all parties. (See complaint, ¶ 10.) In early 2016, Defendant informed his other siblings that he had sold the subject prope...

Excerpt: ...quently filed doe amendments naming, among others, defendant Cushman & Wakefield of California, Inc. (“CWCI”), who was the property manager at the campus. CWCI filed a cross‐complaint asserting causes of action against cross‐defendants DoorKing, Inc. (“DoorKing”), Nortek Security & Control (“Nortek”), and Able Engineering Services, Inc. (“Able”) for equitable indemnity, contribution, declaratory relief, and negligence. CWCI ad...

Excerpt: ...ages. The Cross‐ Complaint was deemed filed as of January 23, 2018 by order of the Court (Hon. Pierce). The only copy of the Cross‐Complaint existing in the Court's file is a copy of the then proposed cross‐complaint attached as exhibit A to the November 27, 2017 declaration of Blue Shield counsel Craig Rutenberg in support of the motion for leave to file a cross‐complaint. The Cross‐Complaint states five causes of action: 1) Breach of ...

Excerpt: ... ¶9.) At the time of said breach, defendant Chea owed the sum of $9,996.55 demand for which was made on September 10, 2015 and remains unpaid. (Complaint, ¶10.) Plaintiff Retirement Security Investment Group LLC (“RSIG”) acquired a debt portfolio from Cherrywood Enterprises, LLC consisting of personal loan debt. (Complaint, ¶6.) Plaintiff RSIG is a third party debt buyer and the holder of that certain debt portfolio defined as the Cash Cal...

Excerpt: ... Shulmans are the current owners of 95 Mount Vernon Lane in Atherton (“Replacement Residence”). (Id.) Defendant RFBPO LLC (“LLC”) purchased the Original Residence on October 8, 2013 for $14 million dollars. (FAC, ¶¶4 and 9.) Defendant Santa Clara County Assessor's Office assessed the Original Residence value at $4.86 million dollars. (FAC, ¶4.) LLC is controlled and/or owned by Mark Zuckerberg (“Zuckerberg”), founder of Facebook. (...

Excerpt: ...n Santa Clara County Superior Court, case number 1‐11‐CV‐193356 (“Underlying Action”). (Second Amended Complaint (“SAC”), ¶6.) Deer Crest owned a condominium project in Utah. (Id.) Pursuant to a July 1, 2005 construction contract between Deer Crest and Silver Creek Development Group, LLC (“Silver Creek”), Silver Creek agreed to perform certain construction of the condominium project. (Id.) Granum Partners executed a written gua...

Excerpt: ...�FAC”), Plaintiff purchased an automobile with financing from Patelco and insurance from FLIA. At the time of purchase, FLIA provided assurances that it would pay for repairs falling within the scope of the insurance. Subsequently, the vehicle needed repairs and Plaintiff contacted FLIA to determine which repair shop would be covered by his insurance. FLIA stated Plaintiff could take the vehicle to a servicer of his choice and it would cover th...

Excerpt: ...ted on Mr. Usher's hand using a “MANOS device” “for a carpal tunnel repair.” (Second Amended Complaint (“SAC”) at pp. 4, 6.) Plaintiffs allege Dr. Yeh did not adequately disclose information about the MANOS device or his experience and skill using it. (SAC at pp. 6‐7.) Additionally, during the surgery, Dr. Yeh severed Mr. Usher's median nerve. (SAC at p. 4.) Subsequently, Mr. Usher told Dr. Yeh he had been experiencing “more pain ...

Excerpt: ...Second Amended Complaint (“SAC”) of plaintiffs Julio Mendoza (“Mendoza”) and Charise Cass (“Cass”) (collectively, “Plaintiffs”). Factual and Procedural Background This action arises out of the nonjudicial foreclosure sale of real property located at 21435 Madrone Drive, Los Gatos, CA 95033 (“Property”). Plaintiffs originally acquired the Property when they were married. (SAC at ¶¶ 1 and 7.) They allege that the Property is, ...

Excerpt: ... (See complaint, ¶ 12.) However, Novinium failed to accurately measure the length of the cables by 28%, and, in an attempt to complete the project on time, Novinium increased the injection pressure to 60 psi, double the maximum pressure provided by Novinium's documented injection procedures. (See complaint, ¶¶ 17‐20.) Moreover, Novinium reused ground clamps, improperly mixed or used defective injection fluids, and prematurely capped the cabl...

Excerpt: ...Plaintiff's summons and complaint is DENIED. “A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) ¶4:414, p. 4‐69 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1...

Excerpt: ...95.18. On Grimley's claim form, he indicated that he was filing his claim “[i]n response to a judicial petition for forfeiture” and not “[i]n response to notice of administrative proceedings.” (Claim at p. 1.) But Grimley's claim form was the first paper filed in this proceeding; there was no pending petition.2 In November 2017, the Santa Clara County District Attorney's Office (the “DA”) filed a petition for forfeiture pursuant to He...

Excerpt: ...erted therein. Defendants' requests for judicial notice are GRANTED IN PART and DENIED IN PART. While the Court may properly take judicial notice of the Complaint as a court document pursuant to Evidence Code section 452, subdivision (d), it may not properly take judicial notice of the existence of a contract between private parties. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) The requests are GRANTED as to Exhibi...

Excerpt: ...ust 15, 2016 to February 20, 2017. (Id. at ¶ 4.) He alleges that his wage statements failed to specify the hourly rates and number of hours worked for the “Premium Pay‐Hourly,” which was listed as a lump sum. (Id. at ¶ 17.) Plaintiff filed this action on May 11, 2017, asserting claims for (1) violation of Labor Code section 226 and (2) penalties under the Private Attorneys General Act (“PAGA”). The parties have reached a settlement. P...

Excerpt: ...tive class action for recovery of penalties under the California Labor Code Private Attorneys General Act of 2004. Plaintiff Eva Sharp (“Plaintiff”) worked as a cashier for defendant Safeway, Inc. (“Defendant”) in California. (Complaint, ¶¶ 3‐4.) Plaintiff alleges Defendant failed to provide Plaintiff and the other putative class members with seats. (Complaint, ¶ 17.) Now before the Court is Plaintiff's motion for class certification...

Excerpt: ...l his termination on August 7, 2017, and was a Senior Software Engineer at its Mountain View campus. (First Amended Complaint (“FAC”), ¶ 12.) Plaintiff David Gudeman was also a Software Engineer at Google from 2013 until his termination in December 2016. (Id. at ¶ 13.) Plaintiff Manuel Amador worked for Google in San Francisco beginning in 2013, then transferred to its Zurich, Switzerland offices. (Id. at ¶ 14.) He unsuccessfully reapplied...

Excerpt: ...es paramedical examination services in the State of California, and A.P.P.S. of California is a related entity. (Class Action Complaint, ¶¶ 9‐10.) In October 2015, defendants hired plaintiff as a Medical Examiner to conduct medical exams for life insurance applications. (Id. at ¶ 7.) Plaintiff was classified as an independent contractor and compensated on a piece‐rate basis for her work. (Ibid.) She alleges that she and other members of th...

Excerpt: ... (“BDFTW”) (collectively, “Defendants”). According to the allegations of the verified complaint, Plaintiff is the owner of real property located at 43 Heath Street, Milpitas, CA (“Subject Property”). Plaintiff executed a mortgage relating to the Subject Property, which consisted of a Deed of Trust (“DOT”) and an Adjustable Rate Rider. The lender, Fieldstone, was a table lender for Contrywide Home Loans (“CHL”). CHL is the orig...