Excerpt: ...ss representatives, a net PAGA payment of $2,250, and settlement administration costs of up to $5,000. After these expenses, the class would get $87,250. The average payout per class members would be $883. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analysis as required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116. A very imp...

Excerpt: ...ablished rule that a motion for change of venue must satisfy two requirements: (1) It must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory." (Easton v. Superior Court (1970) 12 Cal. App. 3d 243, 245-46.) Here, Defendant has established that the proper venue for the action is in Contra Costa County given that a...

Excerpt: ...any supplemental filings at least 5 court days before the hearing. LWDA/PAGA RELEASE The settlement agreement states that the participating class members are releasing "all Released PAGA Claims." (Agt, I.1.) The parties might want to amend the agreement in this regard. The named plaintiff acts as agent or proxy of the LWDA under the PAGA and can release the claims of the LWDA. The named plaintiff does not represent the "aggrieved employees" in th...

Excerpt: ...th 581, 596; (citing text); Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The underlying complaint involves a claim for personal injury based on premises liability and negligence regarding an ankle injury due to Plaintiff tripping on debris and rubble on the walkway at Defendant's property. (Complaint at Pages 4-5.) Plaintiff seeks to add three unrelated causes of action for Breach of Contract, Breach of Quiet Enjoyment, Civil...

Excerpt: ... is for ages 2-3. It is sold with a plastic dropper. The label states that it is 160 mg of acetaminophen per 5 ml. The "Children's Pain Relief" states it is for ages 2-11. It is sold with a plastic cup. The label states that it is 160 mg of acetaminophen per 5 ml. The 1AC asserts that by using different names that defendants mislead consumers into thinking that the "Infants' Pain Relief" has a different formulation than the "Children's Pain Relie...

Excerpt: ...any, California, while setting up a product display for her employer, Mondelez International Inc. Plaintiff did not file her Complaint until April 8, 2021. Plaintiff contends in the Complaint that the two-year statute of limitations did not begin to run on August 30, 2018, because she was not aware of Defendant's negligence until months later. In California, the statute of limitations commences when a plaintiff has sufficient information to suspe...

Excerpt: ... paid sick leave based on the employee's "regular rate of pay" as the base hourly wages. Plaintiffs assert that Kaiser should have calculated the employee's "regular rate of pay" as including base hourly wages plus shift differentials, assignment based differentials, longevity differentials, and other non-discretionary wages. (Cpt para 21, 22.) The complaint asserts (1) a UCL unlawful claim borrowing from Labor Code 246; (2) a Labor Code 218, 204...

Excerpt: ...o substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The trial court also may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. ...

Excerpt: ...intiff's venue selection is not proper under any of the statutory grounds." (Id.) "It is a long established rule that a motion for change of venue must satisfy two requirements: (1) It must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory." (Easton v. Superior Court (1970) 12 Cal. App. 3d 243, 245-46.) Here, De...

Excerpt: ...fficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly p...

Excerpt: ... premises. (See Third Amended Complaint, paragraph 26.) Plaintiff further alleges that Pettner was acting in the course and scope of his employment as Sutter's designated "bouncer" when he committed his alleged assault and battery on Plaintiff. (See Third Amended Complaint, paragraphs 52 and 65.) Plaintiff's allegations, if true (and the Court must presume them to be true in ruling on this demurrer) support a claim for assault and battery against...

Excerpt: ...y located at 4851 Walnut Street, in Oakland (residence) and 1246 79th Avenue, in Oakland (rental property). The Court is very familiar with Plaintiff's allegations and contentions. There have been many motions filed in this case since Plaintiff filed her initial Complaint on November 5, 2020. The subject Verified Second Amended Complaint includes six causes of action. Plaintiff asserts the these causes of action against Defendants: (1) First Caus...

Excerpt: ...(Code of Civil Procedure ["CCP"] § 576; see also CCP § 473(a)(1) [allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rights of other parties." (McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 987.) Leave to amend should be granted unless there is "unwarrante...

Excerpt: ... sidewalk causing Plaintiff to fall to the ground." Plaintiff alleges that the accident occurred on a section of sidewalk near 1237 Russell Street, in Berkeley. Plaintiff alleges that the City of Berkeley had actual or constructive notice of the dangerous condition of the sidewalk. On November 6, 2020, Defendant filed its first motion for summary judgment. Defendant's motion was based on Plaintiff's testimony during his deposition that he did not...

Excerpt: ... BNSF's Separate Statement Facts Nos. 1, 3, and 5; Plaintiff's response; Plaintiff's Additional Facts Nos. 6-9; and the evidence cited in support. See particularly the declaration of Christian Akina at paragraphs 5-6 and 15-18.) The Court rejects BNSF's argument that the Court must strike the declaration of Christian Akina. Preliminarily, the Court does not understand the reference to "Local Rule 180(e)" in BNSF's reply brief at page 2:21. But in...

Excerpt: ...ra 15 identified this motion. On 9/3/21, the CMC statement of PDG National at para 15 did not identify this motion. On 9/8/21, plaintiff filed a notice that PDG National had not opposed the motion. On 9/14/21, the parties appeared, and the Court set a briefing schedule. To date, no additional briefing has been received pursuant to said schedule. On 9/27/21, plaintiff filed a notice that PDG National had not opposed the motion. On 9/30/21, PDG Nat...

Excerpt: ...is repeated exposure to toxic chemicals in gasoline and diesel fuel, including Benzene. Defendants other than Chevron are foreign corporations that do not maintain their principal place of business in Alameda County. Defendant Chevron's principal place of business is in Contra Costa County. Plaintiff picked up fuel for delivery at locations in Contra Costa County and San Joaquin County. Plaintiff Donna Danley, the spouse of Plaintiff Bernon Danle...

Excerpt: ...ourt repeats the analysis in the parallel case even though it is not directly pertinent to this case OVERVIEW The motion of defendants to strike the complaints and the motion of plaintiff to compel further responses to discovery are both part of the larger picture of how a case moves from a plaintiff's pre-filing investigation to a P65 notice to the Attorney General and the alleged violator, to the filing of an adequate complaint, to discovery, t...

Excerpt: ...prevails) to an appropriate injunction. The motion to strike is based on the pre‐filing notice. It presents questions about whether the notice put the alleged violator on notice so that they could remedy the situation without a lawsuit and to the Attorney General so that it could determine whether to initiate its own investigation and possible lawsuit. The court finds the notice to be adequate. The motion to compel further discovery is based on...

Excerpt: ...prevails) to an appropriate injunction. The motion to strike is based on the pre‐filing notice. It presents questions about whether the notice put the alleged violator on notice so that they could remedy the situation without a lawsuit and to the Attorney General so that it could determine whether to initiate its own investigation and possible lawsuit. The court finds the notice to be adequate. The motion to compel further discovery is based on...

Excerpt: ...icient responses and supplemental responses. The request to compel further verifications to discovery served on Walmart, Inc., Jessica Meadows and Jeff Cox is DROPPED AS MOOT in light of Plaintiff's representation in the reply papers that properly executed verifications were received. (Plaintiff's Reply at Page 10-16.) The court denies Plaintiff's request to deem the admissions at issue admitted by each of the Defendants. The notice of the motion...

Excerpt: ...2AC, para 27(d).) Clients can request specific musicians. (2AC, para 27(n).) When IML or IAL has a client it then invites musicians, who can sign up for the event and play at the event. (2AC, para 27(g).) The musician is paid a share of the proceeds of the performance. (2AC, para 27(g).) The client pays IML or IAL, and IML or IAL then pays the musicians. (2AC, para 27(j).) IML and IAL issue Form 1099s to musicians and do not issue W‐2s. (2AC, p...

Excerpt: ...ee Bus. & Prof. Code, § 17200 et seq [prohibiting unlawful, unfair, and fraudulent methods of competition].) KPIC's motion presents essentially a single issue of law: whether it is subject to, or exempt from, the Knox-Keene Act. California has a divided regulatory system for healthcare coverage providers. Although providers generally compete against each other in one marketplace for health care coverage, providers themselves are classified eithe...

Excerpt: ...nd provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the hearing will most likely be conducted on Wednesday, October 6, 2021 at 3:00 p.m. If a hearing is requested, the Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely...

Excerpt: ...f a putative class. Plaintiff is prosecuting this case as agent or proxy of the LWDA under the PAGA. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also Collie v. Icee Company (2020) 52 Cal.App.5th 477, 481.) These include causes of action 4 (LC 2751), 5 (accounting), 7 (LC 221), 8 (LC 223), and 11 (LC 202). The LWDA's claims are for Labor Code violations. The LWDA is not asserting claims for breach of the "FY19 Incen...

Excerpt: ...CCP 5150.) PROCEDURAL MATTERS These are demurrers, so the court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) California law is that complaints must be in language that is "ordinary and concise" (CCP 425.10) and "allegations must be liberally const...

Excerpt: ...nspiracy allegations to evade their obligation to plead fraud‐based causes of action with particularity. Further, the Court does not understand how TILA or Regulation Z (12 C.F.R. § 1026.1 et seq.) can possibly apply to the at‐issue loans as alleged in the SAC's Sixth Cause of Action, where the loans were extended to a limited liability company, rather than to a "consumer" as defined at 12 C.F.R. § 1026.2(a)(8) and (11) (i.e., a "natural pe...

Excerpt: ... slander of title to two properties in Pleasanton, CA; (4) intentional interference with prospective economic advantage (re: the four Pleasanton properties); (5) intentional interference with prospective economic advantage (the Fremont properties); (6) intentional interference with prospective economic advantage (the two Pleasanton properties referenced in the third cause of action); (7) negligent interference with prospective economic advantage ...

Excerpt: ...ng and recording of a lis pendens is protected activity under C.C.P. § 425.16(e)(2). This issue was extensively analyzed by in Park 100 Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795. To show a probability of prevailing for purposes of section 425.16, a plaintiff must "make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiffs favor. [citation.]" (ComputerXpress. Inc. v. Jackson (2001) 93 C...

Excerpt: ...which the court shall grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that sa...

Excerpt: ..., sold and/or distributed 12 types of nutritional supplement products (the "Supplements"), which Plaintiff alleges contain lead, a known cancer‐causing substance. Plaintiff's supplemental evidence identifies the levels of lead discovered by the testing of said Supplements and what amounts of lead consumers would be consuming based on typical daily serving sizes. (See Records Filed under Seal, pages immediately following Hajdu Sales Dec..) The p...

Excerpt: ...October 25, 2021, consistent with this Order. An initial hearing was conducted on 9/9/2021. Following that hearing, the Court issued an Order advising that RFPDs Nos. 7 and 16 were overbroad as drafted and advising the parties to meet and confer further regarding attempts to appropriately narrow the RFPD. The Court set a second hearing for the Motion to Compel and Ordered the parties to submit a joint statement regarding any agreements reached in...

Excerpt: ...-month-long Covid-19 emergency, the running of the five-year statute has been and will continue to be tolled due to impossibility and/or impracticability arising out of the Covid emergency until this Court is able to conduct jury trials in non-preferentially set cases. An argument can be made that Plaintiff has at times been dilatory in this now six- year long litigation. However, the Alameda Superior Court, since the Covid emergency was declared...

Excerpt: ...trial court by focusing it on the facts essential to the resolution of the motion. It is not the presentation of all facts in a two column format. The court has considered all the evidence submitted. All objections to evidence are OVERRULED. Plaintiff made targeted objections. Defendants made objections to categories of evidence. The Court refers counsel to Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578 fn 6, regarding t...

Excerpt: ...o the PAGA claims and settlement, as described below. The parties may file a revised Settlement Agreement addressing the Court's concerns no later than Monday, October 18, 2021. Note that Case No. RG 20-081357 and Case No. RG 20-082062 have been deemed related.) IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Friday, October 1, 2021 contesting party must email [email protected] and provide notice to al...

Excerpt: ...2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleg...

Excerpt: ...uct; and (3) if the contract was written, attach the contract as an exhibit to the First Amended Cross-Complaint or allege, verbatim, the term(s) of the contract that BWR breached. Although paragraph 6 of the Cross-Complaint refers to a "lease", it does not appear that Kapila is alleging that BWR actually leased the subject property from Kapila. In addition, Kapila fails to expressly allege that they entered a contract with BWR requiring that any...

Excerpt: ...n to the motion. SEVENTH CAUSE OF ACTION In reviewing the First Amended Complaint, the court agrees that Plaintiff has not adequately alleged sufficient facts in support of its cause of action for Intentional Infliction of Emotional distress, which requires showing "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's sufferi...

Excerpt: ...ion to Dismiss the Cross-Complaint of defendant and cross-complainant Dellesia Onifade ("Onifade") for Delay in Prosecution is GRANTED for the reasons set forth below. The Court declines to rule on Fonteno's Motion for Writ of Execution and Abstract of Judgment. Fonteno has remedies to enforce a prior monetary sanctions award that do not require a further Order of Court. (See Newland v. Sup. Ct. (1995) 40 Cal.App.4th 608, 615.) Kennedy's Motion f...

Excerpt: ...ion to Dismiss the Cross-Complaint of defendant and cross-complainant Dellesia Onifade ("Onifade") for Delay in Prosecution is GRANTED for the reasons set forth below. The Court declines to rule on Fonteno's Motion for Writ of Execution and Abstract of Judgment. Fonteno has remedies to enforce a prior monetary sanctions award that do not require a further Order of Court. (See Newland v. Sup. Ct. (1995) 40 Cal.App.4th 608, 615.) Kennedy's Motion f...

Excerpt: ... no later than 4:00 p.m. on Monday, August 9, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, August 11, 2021 at 1:30 p.m. or at a subsequent da...

Excerpt: ... from default [citations].' " (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980, quoting Elston v. City of Turlock (1985) 38 Cal.3d 227, 233). If a defendant promptly seeks relief and there is no showing of prejudice to the plaintiff " 'very slight evidence will be required to justify a court in setting aside the default.' " (Elston, supra, 38 Cal.3d at p. 233.) Further, although there is no legal obligation to warn an opposing party before applyi...

Excerpt: ... from default [citations].' " (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980, quoting Elston v. City of Turlock (1985) 38 Cal.3d 227, 233). If a defendant promptly seeks relief and there is no showing of prejudice to the plaintiff " 'very slight evidence will be required to justify a court in setting aside the default.' " (Elston, supra, 38 Cal.3d at p. 233.) Further, although there is no legal obligation to warn an opposing party before applyi...

Excerpt: ...hall have as costs of suit against Defendant the total amount of $3,613.25. STANDARD OF LAW A prevailing party may recover costs under California law. (See CCP § 1032(a)(4).) "Prevailing party" includes "a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Id.) "Except as otherwis...

Excerpt: ...'s Motion to Compel Further Responses to SROG Nos. 18-21 and 66 is GRANTED IN PART and DENIED IN PART. Plaintiff's Motions to Compel Further Responses to RFA Nos. 9-10 and FROG No. 17.1 with respect to RFA Nos. 9-10 are GRANTED. Plaintiff's Motion to Compel Further Responses to RFPD Nos. 30, 32 and 47 is GRANTED. Defendant shall serve verified further responses to Plaintiff's at-issue written discovery requests as Ordered herein no later than Fri...

Excerpt: ...T as to Items Nos. 2, 7-8, 11-14, and 18-22, in light of the Court's ruling on Defendant's demurrer, also heard this date. The Motion is GRANTED as to Items Nos. 3 and 9 in the Notice of Motion, WITH LEAVE TO AMEND to allege facts (as opposed to conclusory allegations) demonstrating that Defendant acted with malice, fraud, or oppression. The Motion is GRANTED as to Items Nos. 4-6 in the Notice of Motion. Plaintiff alleges that Defendant negligent...

Excerpt: ... B. Mitchell oppose the motion. In their reply brief, however, Plaintiffs concede that Questions 3, 4, 15, 17, 18, 19, 31, and 32 were satisfactorily answered during the deposition notwithstanding counsel's instruction not to answer. The Court accordingly considers the motion withdrawn as to those questions. Plaintiffs point to several questions to which the witnesses were instructed not to provide an answer on the grounds of irrelevance, specula...

Excerpt: ... Conversion of Corporation Property; (3) Unfair Business Practices (Bus. & Prof. Code § 17200 et seq.); (4) Forcible Detainer; (5) Ejectment; (6) Breach of Fiduciary Duty; and (7) Negligence as Managing Member of Limited Liability Company. On December 9, 2020, the Court granted Defendant's motion for judgment on the pleadings in part and dismissed the Fourth and Fifth Causes of Action. The case is currently set for a jury trial starting on Novem...

Excerpt: ... and engaged in a good faith interactive process to do so. (See Defendants' Separate Statement Facts ("SSF") Nos. 25-28, 31, 34, 36-37, 39, and 41-42; Plaintiff's response; Plaintiff's Additional Facts ("AF") Nos. 31-33, 39-43, 47, 50, and 57-59; and the evidence cited in support.) A to Plaintiff's Third Cause of Action for Disability Discrimination, the motion is DENIED. Plaintiff's evidence creates a triable issue of material fact as to whether...

Excerpt: ...tion. Defendants argue that inquiries into a treating physician's thoughts and opinions that were formed outside of Plaintiff's actual treatment are irrelevant as a matter of law when the treating physician has not been designated as an expert witness. (See County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1455-1456 [vacating order compelling treating physicians must testify at deposition as to their present opinions of the medi...