Excerpt: ... Department 5. The Court now issues its tentative ruling as follows: I. INTRODUCTION This is a putative class action arising out of various alleged Labor Code violations. The Second Amended Complaint (“SAC”), filed on October 20, 2017, sets forth the following causes of action: (1) Unfair Competition in Violation of Cal. Bus. & Prof. Code, § 17200, et seq.; (2) Unfair Competition in Violation of Cal. Bus. & Prof. Code, § 17200, et seq.; (3)...

Excerpt: ...rn Tool”). Cruz asserts causes of action for premises liability and negligence against Medina and the property owners for whom he provided landscaping services. Additionally, and as relevant here, Cruz asserts a products liability claim against Northern Tool. Cruz's third cause of action for products liability consists of three separately identified counts for strict products liability, negligence, and breach of warranty. Northern Tool moves fo...

Excerpt: ...at this late date, to add a wholly new cause of action for alleged violation of Labor Code §1197.5 (the California Equal Pay Act). Plaintiff's supporting declaration does not fully and satisfactorily address any of the factors enumerated in California Rules of Court, rule 3.1324(b). Defendants' Request for Judicial Notice is granted. The Court agrees with defendants' arguments that the proposed new cause of action would add significant new factu...

Excerpt: ...r 24, 2002, plaintiff Leire Funk aka Leire Ferro (“Plaintiff”) and her ex‐husband, Rick Funk, financed real property located at 172 French Court in San Jose, California (“Subject Property”). (Third Amended Complaint [“TAC”] at ¶ 17.) As evidence of the loan, Plaintiff executed a promissory note (“Note”) and concurrently executed a Deed of Trust as security for the Note. (Ibid.) The Deed of Trust for the Subject Property was rec...

Excerpt: ...ushnell's (“Nancy”) husband, Nolan Bushnell (“Nolan”).1 (First Amended Complaint (“FAC”), ¶ 8.) Nancy owned real property located in Sunnyvale, California (“Property”) with her brother, plaintiff Robert Nino (“Nino”). (FAC, ¶ 10.) Nancy's interest in the Property “was her separate property, and not part of community property she shares with Nolan.” (Ibid.) At some unidentified time, Nancy and Nino (collectively, “Plain...

Excerpt: ...to assist plaintiff Yum in applying for and obtaining a modification of the first and second deeds of trust recorded against plaintiff Yum's property. (SAC, ¶8.) Defendant Yum verbally represented that he and/or defendants Nexus Line Inc. and Nexus Homes Inc. (collectively, “Nexus”) could obtain or provide plaintiff with a loan modification and prevent or stop any foreclosure of plaintiff's property, and that he had performed the same servic...

Excerpt: ...riage on September 15, 1996. (FAC, ¶12.) After marriage, Plaintiff and Defendant continued to reside together as husband and wife until March 6, 2016. (FAC, ¶13.) On or about February 1, 1992, Plaintiff and Defendant entered into an oral agreement by which they agreed to treat as joint property the earnings, income and all property acquired therewith, which resulted from all personal service, skill, effort, work, monetary contribution and non�...

Excerpt: ...�� or that any mistakes were made. As noted in the Court's most recent order denying Plaintiff's motion for leave to amend, Plaintiff's proposed amended complaint did not address the defects that the Court found in the prior complaints, and otherwise did not state any valid claim against Defendant. Plaintiff argues that the Court should have granted her leave to amend, and suggests that reconsideration is appropriate, but has not filed any proper...

Excerpt: ...ing rulings: The Court finds that by the evidence presented in support of the motion Plaintiff met its initial burden to demonstrate each of the required elements for the cause of action and entitlement to judgment on that cause of action. As Defendant did not file any opposition to the motion, Defendant has failed to meet her burden to show any triable issue of fact. Accordingly, the motion for summary judgment on the Complaint is GRANTED. Plain...

Excerpt: ... the plywood platform upon which Decedent stood collapsed, resulting in Decedent's multi‐story fall and subsequent death. (See SAC, ¶¶ 18, 20.) On January 16, 2018, the Court sustained the demurrer by defendant Alamillo Rebar, Inc. (“Alamillo”) to the fifth cause of action for negligent infliction of emotional distress of the first amended complaint. On January 29, 2018, plaintiffs Irma Vargas, individually and as representative of the Es...

Excerpt: ...ank”) to the First Amended Complaint (“FAC”) of Plaintiff Guy Cavicchia (“Plaintiff”), current Administrator of the Estate of Decedent Patricia Lynn Hairston. The FAC states three causes of action for Negligence, against Defendant Jeanette Taggart (“Taggart,” the attorney for the former administrator of the estate Tracy Infante), Fidelity and U.S. Bank respectively. The other two demurrers are separately brought by Fidelity and U.S....

Excerpt: ... do not consider points raised for the first time on reply for due process reasons. (See In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302‐303 [“ ‘The general rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before' [Citations.]”]; see also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; REO Broadcasting Consultants v. Martin (1999) 69 Cal.A...

Excerpt: ...s, and separate statements submitted by the parties, the Court makes the following rulings: Coco's and Catalina's motion for summary judgment and summary adjudication is DENIED. The summary judgment/adjudication statute, Code of Civil Procedure section 437c, provides that the motion and supporting papers must be served on all other parties to the action at least 75 days before the time appointed for the hearing. If the notice is served electronic...

Excerpt: ... has been a tragic intervening traumatic event which no one could have anticipated, defendant cannot be faulted for or bound to a strategic decision. The need for further inquiry supports good cause. On the other hand, plaintiff should not be compelled to suffer unnecessarily by submitting to further examination. It is true that a medical examination ordered by defendant explored these symptoms in some detail. However, an examination for a specif...

Excerpt: ... objections are therefore waived. As the court has been provided with no evidence that plaintiff has since served responses to the Requests for Admission which substantially comply with §2033.220, the law directs the court that it shall make the order deeming the requests admitted (§2033.280(c).) The Court also finds that no substantial justification has been provided for the failure to timely serve responses, nor for the substance of the oppos...

Excerpt: ...ermal Partners, L.P.; Calpine Sonoma, Inc.; Calpine Geysers Company, L.P.; Geysers Power I Company; Geysers Power Company, LLC; and Calpine Corporation (“Calpine”) (collectively “Defendants”). Calpine is the successor‐in‐interest to Freeport and the remaining defendants are all subsidiaries of Calpine. As alleged in the Second Amended Complaint (“SAC”), in May 1987, SAI Geothermal, Inc. (“SAI”) and Freeport entered into an agr...

Excerpt: ...ll claims handling policy and/or procedure manuals, and all other DOCUMENTS, emails, bulletins, or other WRITINGS relating to policies or procedures relating to the handling of claims for liability coverage under liability insurance policies issued by NACIC.” In its response, NACIC objected, on the grounds that the information sought was protected by the attorney client privilege, the attorney work product doctrine, trade secret, and that the r...

Excerpt: ...ty property – where the Second Amended Complaint is not verified, and plaintiff fails to present any admissible evidence from which the court can determine the probable validity of any real property claim. §405.38 commands “the court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion...”. (Emphasis added.) As the court does not find on...

Excerpt: ...e instant special motion to strike the Complaint in its entirety, which Plaintiff opposes.1 I. Defendant's Motion to Strike Code of Civil Procedure section 425.16 provides a summary procedure by which defendants may dispose of “strategic lawsuits against public participation” or “SLAPP” lawsuits, i.e., lawsuits brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grieva...

Excerpt: ...s Plaintiffs' mother resided at the Terraces of Los Gatos from April 2015 until shortly before her death in April 2017. Plaintiffs allege Defendants repeatedly failed to provide their mother with adequate medical care, especially after she fell and fractured her hip in October 2016. For example, in April 2015, Plaintiffs' mother had a stroke and lost her sight during breakfast, but Defendants' employees failed to call for emergency medical care a...

Excerpt: ...ard. Plaintiff's motions are 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. (2001) 91 Cal.App.4th 224, 234‐235, citing Dunk ...

Excerpt: ... 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 brought pursuant to the California Rosenthal Fair Debt Collection Practices Act (“RFDCPA”). According to the Class Action Complaint for Statutory Damages (“Complaint”), filed on February 23, 2017, plaintiff Linda Lee Carlson (“Plaintiff”), on behalf of herself and all persons similarly situated, seeks st...

Excerpt: ... 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 arising out of various alleged Labor Code violations. The Second Amended Complaint (“SAC”), filed on May 16, 2018, sets forth the following causes of action: (1) Meal Period Liability Under Labor Code § 226.7; (2) Rest Break Liability Under Labor Code § 226.7; (3) Failure to Pay Minimum Wages; (4) Failure to P...

Excerpt: ...The Court now issues its tentative ruling as follows: I. INTRODUCTION This is a putative class action arising out of various alleged Labor Code violations. Plaintiff Lingyu Lu (“Plaintiff”) worked as a charge nurse for defendant Surgical Care Affiliates, LLC (“Defendant”) from April 6, 2015 through October 12, 2015. (Complaint, ¶ 16.) Plaintiff alleges that throughout her employment Defendant engaged in the following violations of the la...

Excerpt: ... for hearing before the Honorable Thomas E. Kuhnle on June 29, 2018, at 9:00 a.m. in Department 5. 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; (4)...

Excerpt: ...�the Property”), after which they obtained a revolving line of credit from Cathay Bank secured by the Property via a deed of trust (“Cathay Bank DOT”). Subsequently, the Changs obtained a loan secured by the Property via a deed of trust, which was eventually assigned to Defendant (“Defendant's DOT”). A foreclosure sale was conducted pursuant to the Cathay Bank DOT, and Trustway Investments, LLC purchased the Property. Trustway Investmen...

Excerpt: ...adford Baugh (“Defendant Baugh”), Plaintiff's former attorney in a marital dissolution action and the only named defendant remaining in this action as a prior demurrer by Defendant Jeanne Schmidt was sustained without leave to amend and a prior motion to quash service of summons for lack of personal jurisdiction brought by Defendant Thomas Kenefick was granted Requests for Judicial Notice A precondition to judicial notice in either its permis...

Excerpt: ...e allegations of the operative SAC, in June 2012, Plaintiff became the owner of an industrial office space located in Santa Clara (the “Property”). (SAC, ¶ 9.) At the time of Plaintiff's purchase of the Property, Defendants were an existing tenant and continued to rent space from Plaintiff under an oral month‐to‐month agreement. (Id.) During the lease negotiations, Martinez represented that both he, personally, and his corporation, Top G...

Excerpt: ...to be performed by plaintiff CSNI on behalf of patient “G.H.” would be paid. (Complaint, ¶BC‐1.) The UCR in the geographical area of plaintiff for the services rendered on behalf of defendants' insured patient is $93,500. (Complaint, ¶BC‐4.) Defendants agreed to pay 60% of the UCR, or $56,100. (Id.) Defendants paid $13,735.80. (Id.) Defendants failed to pay $41,539.89. (Complaint, ¶¶BC‐2 and BC‐4.) On February 20, 2018, plaintiff ...

Excerpt: ...e, and royalty‐bearing license for intellectual property rights relating to Electroglas semiconductor wafer prober stations (“Intellectual Property”). (Complaint, ¶7.) Section 3.05 of the IPLA requires defendant CPSI to permit FormFactor or FormFactor's accountant or auditor to conduct an audit of defendant CPSI's use of the Intellectual Property and of defendant CPSI's books, records, and any and all data to verify defendant CPSI's compli...

Excerpt: ...to insure against losses resulting from, among other things, computer fraud and funds transfer fraud. In 2015, Plaintiff suffered a covered loss when someone sent emails impersonating its Chief Executive Officer and made phone calls impersonating its mergers‐and‐acquisitions attorney to request funds from its Chief Accounting Officer, who thereafter wired funds totaling $46,683,232 to foreign bank accounts. Plaintiff tendered a claim for this...

Excerpt: ...��). According to the operative first amended complaint (“FAC”), Plaintiff purchased a 2011 BMW 550i vehicle (the “Vehicle”) manufactured and/or distributed by Defendants. (FAC, ¶ 8.) In connection with this purchase, Plaintiff received an express written warranty providing that Defendants would repair the Vehicle in the event it developed a defect during the warranty period. (Id., ¶ 9.) When the warranty period was in effect, the Vehic...

Excerpt: ...sitions and replies have been filed in each of the four motions originally noticed for May 22. The court notes that the motion concerning the document requests was filed on April 2, that the notice of motion references both requests for admission and requests for production, and that the separate statement – although entitled a separate statement in support of further responses to requests for admission – addresses only requests for productio...

Excerpt: ... First, this claim is suspect, because if multiple objections to the subpoena by non‐parties were served before the motion to quash was filed, certainly the initial moving papers would have addressed this issue (and it appears that Defendant Jennifer Morgan controls each of these entities, as she signed all but one of the objections). More importantly, the Court will not consider evidence or new arguments first made in reply papers, and courts ...

Excerpt: ... 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 4.2, 7.1, 7.2, 7.3, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 13.2, 14.1, 14.2, 15.1, 16.1, 16.2, 16.3, 16.6, 16.10, 17.1, 20.1, 20.2, 20.3, 20.4, 20.5, 20.6, 20.7, 20.8, 20.9, 20.10, 20.11, special interrogatories (“SIs”) numbers 1‐45, and requests for production of documents (“RPDs”) numbers 1‐23. On October 2, 2017, defendant Union Pacific Railroad Company (“UPRR”) provided verifie...

Excerpt: ... development in the City of San Jose. (Complaint, ¶¶ 1 and 7.) Plaintiff acts as a homeowners association and all owners of homes within the commoninterest development are mandatory members. (Id. at ¶¶ 1‐2.) Defendant does business as a property developer and landowner in the City of San Jose. (Complaint, ¶ 3.) Defendant owns and intends to develop a multi‐parcel property generally described as Santana Row. (Ibid.) Located within the San...

Excerpt: ...ed to see some detailed listing and proof of costs that are not filing fees. Where costs are discretionary in nature, and the claimed items are not expressly allowed by statute, the burden of proof on a motion to tax costs is on the party claiming them to show that the charges were reasonable and necessary. (Foothill‐De Anza v Emerich (2008) 158 Cal.App.4 th 11, 29; Ladas v California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774; See Ne...

Excerpt: ...egalForce's request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (h).) LegalForce's motion for summary judgment is GRANTED on the Second Amended Cross‐complaint. With respect to Lai's first cause of action for unlawful sex discrimination, the Court finds that LegalForce has demonstrated that Lai (and Figel) and Au's roles at LegalForce were not similar “in all material respects” because Lai could provide legal advice, the prim...

Excerpt: ... “in connection with one or more proposed Transactions” as set forth in the Agreement. (Complaint, ¶11 and Exh. A.) As compensation for Mavericks' services, Cesca agreed to pay Mavericks a monthly retainer fee (“Commitment Fee”) of $25,000 plus a “Transaction Fee” should any of several possible transactions between Cesca and a third‐party transpire during the term of the Agreement or within a “Tail Period” of up to 24 months fo...

Excerpt: ...��) whereby Nano was granted the right to purchase and resell Plaintiff's products. 1 Nano agreed to pay Plaintiff set prices, with 20 percent paid upon placement of the order and the remaining 80 percent within 150 days of shipment or a correct invoice. Nano placed a purchase order with Plaintiff for four machines for a total price of $298,140 and paid 20 percent of the total price up front. The machines were shipped and invoiced correctly, but ...

Excerpt: ...ler (“Noemi”) (collectively “Plaintiffs”). As alleged in the First Amended Complaint (“FAC”), Plaintiffs own property located at 18910 Pendergast Avenue, Cupertino, CA (“Subject Property”). On December 7, 2005, Plaintiffs obtained a loan from Washington Mutual Bank, F.A. (“WaMu”) which they secured by a deed of trust (“DOT”) on the Subject Property. (FAC, ¶¶ 1, 7.) The DOT named WaMu as the lender, Washington Mutual Bank...

Excerpt: ...ant MAPFRE misrepresented the coverage plaintiff Rubino could obtain for his 2000 Jaguar XJR. (FAC, pp. 2 – 3.) On September 22, 2017, plaintiff Rubino's car was hit on 11th Street in San Jose while plaintiff was at work. (FAC, p. 3.) Plaintiff found damage consistent with a trash bin. (FAC, p. 3.) MAPFRE opened a claim. (FAC, p. 3.) Plaintiff Rubino was fully aware he had minimum liability insurance coverage. (FAC, p. 3.) Plaintiff Rubino alle...

Excerpt: ...ent 5. The Court now issues its tentative ruling as follows: I. INTRODUCTION This is a putative class action. According to the allegations of the Third Amended Complaint (“TAC”),1 filed on April 23, 2018, plaintiff Zuri Lazard (“Plaintiff”) was a registered nurse in the emergency room department (“ER”) at Regional Medical Center of San Jose 1 It does not appear a Second Amended Complaint was ever filed in this case. TENTATIVE RULING R...

Excerpt: ...ACTIONS The above‐entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on June 22, 2018, at 1:30 p.m. in Department 5. The Court now issues its tentative ruling as follows: I. INTRODUCTION This case arises out of the Silicon Valley Berryessa Extension Project (the “Project”), a 10‐mile extension of the BART rail line south from Warm Springs to Berryessa. (First Amended Complaint of Skanska‐Shimmick‐Herzog a Joint...

Excerpt: ...AX CENTER, and DOES 1 through 50, inclusive, Defendants. Case No. 2016‐1‐CV‐303880 TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT The above‐entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on June 22, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows: I. INTRODUCTION This is a putative wage and hour class action. According to the allegations of the...

Excerpt: ...Court now issues its tentative ruling as follows: I. INTRODUCTION This is a putative consumer class action brought pursuant to the California Fair Debt Buying Practices Act, Civil Code sections 1788.50‐1788.64 (“CFDBPA”). According to the Class Action Complaint for Statutory Damages (“Complaint”), filed on August 29, 2017, plaintiff Donna Louis Horner (“Plaintiff”) seeks statutory damages against defendant Crown Asset Management, LL...

Excerpt: ...t or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4...

Excerpt: ...TekSmart, LLC (“ETS”). It is fundamentally unclear from the complaint what Plaintiffs' business is. In any event, Winwire U.S. is a California corporation that employed Nayak as a Senior Vice President of Professional Services beginning in 2012. Around the same time, Winwire India hired Kokkonda to work as a Senior Account Manager at its office in Hyderabad, India. Plaintiffs allege Nayak and Kokkonda misappropriated trade secrets — includi...

Excerpt: ...xecuted an operating agreement shortly thereafter. (Complaint, ¶¶ 6‐7.) Around 2012, Plaintiff received a twenty‐five percent (25%) ownership interest in Strategic pursuant to a membership interest transfer agreement. (Id. at ¶ 8.) Plaintiff believes Mercer owns the remaining seventy‐five percent (75%) interest in the company. (Ibid.) Plaintiff does not have a copy of Strategic's operating agreement or a clear understanding of his rights...

Excerpt: ...r arranging the improvements to convert the existing space at the subject property so that it would be suitable for a daycare center. (See FAC, ¶ 10.) On September 12, 2012, Liu and Wu entered into a written contract with architect Susan Chen to design the improvements to convert the existing warehouse at the subject property to a daycare center of about 6,500 square feet, applying for a use permit, and preparing the supporting documentation, in...

Excerpt: ... In the Complaint, Plaintiff alleges that Defendants violated the RFDCPA by sending an initial written communication to Plaintiff and the putative class in an attempt to collect a debt which does not include the notice required by California Civil Code Section 1812.700(a). After months of litigation and settlement discussions, the parties have reached a settlement. Plaintiff now moves for an order preliminarily approving the settlement, provision...

Excerpt: ...Equinox vehicle (“Vehicle”), which was manufactured and/or distributed by Defendant. (FAC, ¶ 17.) In connection with the purchase, Plaintiff received an express warranty providing that Defendant would preserve or maintain the utility and performance of the Vehicle or provide compensation if there were a failure in those areas for a specific amount of time. (Id., ¶ 18.) During the warranty period, the Vehicle developed certain defects, inclu...

Excerpt: ...in the First Amended Complaint (“FAC”), Besse had a benign tumor in his right shoulder for many years. (FAC, ¶ 19.) Around the end of 2015, after several MRI tests, Besse was referred to the interventional radiology department at Stanford. (Id. at ¶ 19.) There, the doctor recommended that Besse try a “new procedure” using high intensity focused ultrasound (“HIFU”) instead of a more traditional treatment route such as surgery. (Ibid....

Excerpt: ...nt, ¶11.) On or about June 15, 2017, the Debt was sold to defendant Southwestern Investors Group, LLC (“SIG”) for collection purposes. (Complaint, ¶12.) Defendant SIG hired, contracted, or otherwise engaged Debt Recovery Solutions, LLC (“DRS”) to collect the Debt from plaintiff Edwards on defendant SIG's behalf. (Complaint, ¶14.) On or about June 20, 2017, DRS sent, or caused to be sent, a written communication to plaintiff Edwards at ...