Excerpt: ...f Action for Rescission of Written Contract WITHOUT LEAVE TO AMEND. The Court GRANTS IN PART WITH LEAVE TO AMEND and DENIES IN PART Plaintiff's Motion to Strike. Defendant may file and serve an Amended Cross-Complaint no later than Friday, March 19, 2021. This tentative ruling will automatically become the Court's final order on Tuesday, March 2, 2021 unless, by no later than 4:00 p.m. on Monday, March 1, 2021 a party to the action notifies both ...

Excerpt: ...a.courts.ca.gov and provide notice to all counsel of the intent to contest the tentative order. ANY REQUESTED HEARING WILL BE CONDUCTED ON WEDNESDAY, March 3, 2021 at 3:00 p.m. in Dept. 19 and will most likely be conducted using the Blue Jeans Network, password # 5102676935. 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 contested, and the ...

Excerpt: ... Deponent to pay monetary sanctions to Defendant in the amount of $750 payable no later than Friday, April 27, 2021; however, such monetary sanctions will be due and payable ONLY IF Deponent's deposition and document production have NOT been completed by Friday, April 16, 2021, or on such later date as mutually agreed to by Defendant and Deponent in writing no later than April 16, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LAT...

Excerpt: ...missal was in error or who was responsible for the error, such that the Court could properly determine that Plaintiff brings this Motion within a reasonable time of learning of the mistake and is entitled to the relief requested. If any party wishes to contest this Tentative Ruling, no later than 4:00 PM on Thursday, February 25, 2021, contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress ...

Excerpt: ...ay obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (CCP § 2017.010.) "[S]tatutes governing discovery 'must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes ...

Excerpt: ...al injuries when her bus was struck from behind by a vehicle driven by Defendant Calhoun on San Pablo Avenue, in Berkeley. Plaintiff's action was consolidated for all purposes with an earlier filed action filed by the Alameda-Contra Costa Transit District on December 12, 2019 to recover some or all of the amounts it paid to Plaintiff Gates in worker's compensation benefits. Counsel for Defendants has been attempting to take Plaintiff's deposition...

Excerpt: ...ed, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (CCP § 2017.010.) "[S]tatutes governing discovery 'must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.'" (Yelp, Inc., 17 Cal. App. 5th at 15 [int...

Excerpt: ... costs of up to $25,000, a service award of $10,000 for the class representative, a net PAGA payment of $30,000, and settlement administration costs of $8,500. After these expenses, the class would get $186,500. The average payout per class members would be $402. There were 8,053 allegedly inaccurate wage statements. This is $48.50 gross and $23.15 net per allegedly inaccurate wage statement The proposed class notice form and procedure are adequa...

Excerpt: ...RDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3...

Excerpt: ...20. On November 23, 2020, prior to Defendant making an appearance, Plaintiff filed the operative First Amended Complaint on behalf of himself and other allegedly aggrieved employees for civil penalties pursuant to Labor Code § 2699. Plaintiff alleges in the First Amended Complaint that he exhausted his administrative remedies by giving notice of his claim to the Labor and Workforce Development Agency. In paragraph 7, Plaintiff prays for an award...

Excerpt: ...d the Verified Amended Answer of Permobil, Inc. to the Fifth Amended Complaint filed on January 8, 2021. Plaintiff requests the Court to sustain its demurrer to Defendant's denials of his allegations in paragraphs 60-63, 83-84, 87-89, 91-93, and 96-97 of the Verified Fifth Amended Complaint. Plaintiff argues in his demurrer that Defendant had an obligation to deny each allegation positively or according to its information and belief because the a...

Excerpt: ... tips and did not let the staff retain the tips. (1AC, para 13.) The 1AC asserts claims for (1) money had and received, (2) conversion, (3) intentional interference with economic relations, (4) Constitutional claims based on (a) unreasonable search and seizure and (b) due process. ORDER FIRST CAUSE OF ACTION - MONEY HAD AND RECIEVED The demurrer to the first cause of action for the common count of money had and received is SUSTAINED WITH LEAVE TO...

Excerpt: ... claims are based on two practices. First, there are claims relating to nerve blocks. Sutter has a business practice of placing patients in operating rooms to perform nerve blocks. Sutter then charges for operating room time at NUBC revenue code 36x. Under the NUMC Manual, revenue code 36x is applicable only to "charges for services [related to] the performance of surgical and related procedures during and immediately after surgery as well as the...

Excerpt: ...20. On November 23, 2020, prior to Defendant making an appearance, Plaintiff filed the operative First Amended Complaint on behalf of himself and other allegedly aggrieved employees for civil penalties pursuant to Labor Code § 2699. Plaintiff alleges in the First Amended Complaint that he exhausted his administrative remedies by giving notice of his claim to the Labor and Workforce Development Agency. In paragraph 7, Plaintiff prays for an award...

Excerpt: ...ions. There are approximately 196 members of the class. The claims against the settling defendants preliminarily settled for a total of $150,000. The settlement agreement states there will be attorneys' fees and cost of up to $45,000 (30%), costs of up to $16,000, a service award of $10,000 each for the two class representative, a net PAGA payment of $5,625, and settlement administration costs of up to $12,000. After these expenses, the class wou...

Excerpt: ...of up to $71,666.67 (33%), costs of up to $20,000, a service award of $2,500 for the class representative, a net PAGA payment of $6,000, and settlement administration costs of up to $10,000. After these expenses, the class would get approximately $102,833. The average payout per class members would be approximately $562. The settlement was mediated with the assistance of Steve Pearl. The court gives "considerable weight to the competency and inte...

Excerpt: ...s' claims are based on their purchase of Defendants' property located at 6450 Oakwood Drive, in Oakland, on January 30, 2019. Plaintiffs were in the market for a house in the San Francisco Bay Area because Plaintiff Vessere had accepted a job offer in the area. Plaintiffs were living in Canada when they contacted local realtor Raymond Markarian. Mr. Markarian's agency is Marker Real Estate. Plaintiffs allege in the Complaint that Defendant Markar...

Excerpt: ...ly support its defenses or affirmative defenses in this case. Sutter indicated it was going to produce 65 documents. (Kelly Dec. Exh 6.) Sutter gave notice to Blue Shield. Blue Shield objects to Sutter producing the arbitration documents. The court provided its initial thoughts in a series of informal discovery conference emails dated 11/21/19, 12/3/19, 10/21/20, and 11/12/20. (CCP 2016.080.) The informal discovery conference emails were informal...

Excerpt: ... has not waived its sovereign immunity under the Eleventh Amendment to the United States Constitution and that Defendant is not judicially estopped from asserting its Sovereign Immunity based on positions the State took in Stoetzl v. Calif. Dept. of Human Resources (2019) 7 Cal.5th 718. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, February 23, 2020, the contesting party must email [email protected]....

Excerpt: ... by Defendant to the First Amended Complaint and Second Amended Complaint. Plaintiff's daughter, 19-year-old Rusamie "Ashly" Phong Phoumy ("Ashly") was killed with a knife by Defendant's half-brother, Abdol Ali Omar, on the morning of November 30, 2014, at Defendant's business, Oakland Market. Defendant contends in his motion that the Court should grant summary judgment because he owed no duty to Ashly to protect her from an unforeseeable attack ...

Excerpt: ...rovide 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 Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the final order of the Court. ANALYSIS OF MOTION The parties do not...

Excerpt: ...uraged from giving multiple extensions of time to file a motion to compel instead of dealing substantively with the dispute as early as possible. The Court will not grant Plaintiff's request for an award of discovery sanctions because her attorneys did not comply with their obligation to make a reasonable and good faith attempt to resolve each disputed issue prior to filing the motion on December 18, 2020. See CCP § 2016.040 (facts showing that ...

Excerpt: ...int of the Roman Catholic Welfare Corp (Owner) filed 6/12/18 asserts claims against Contractor arising from the large scale remodeling of St Theresa School. (Cpt para 8-10.) The contract has an indemnity provision where Contractor agrees to indemnify Owner against claims arising from the performance of the work that are "attributable to bodily injury, sickness, disease, or death, or injury to or destruction of tangible property (other than the Wo...

Excerpt: ...ices did not provide for meal periods, rest periods, overtime wages, and so on, without specifically identifying the offending policies or otherwise alleging what those policies provided. A complaint need only "set forth the essential facts of the plaintiff's case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source, and extent of the plaintiff's claim." (Prue v. Brady Company/San Diego, In...

Excerpt: ...Court has considered (1) the relative strength of the Plaintiffs' case; (2) the high risk, expense, complexity, and likely duration of further litigation of this dispute; (3) the high risk of maintaining class status through trial; (4) the relatively generous amount offered in settlement; (5) the extent of discovery completed and stage of the proceedings; (6) the experience and views of counsel that settlement is reasonable; and (7) the lack of a...

Excerpt: ...aintiff's Second Amended Complaint ("SAC") alleges that in 2013, the Tang Defendants approached Plaintiff to enter into an oral partnership with them to purchase a property at 1800-1806 E. 24th Street, Oakland (the "Subject Property"), a four-unit residential rental property. The deal, regarding which the parties do not appear to dispute, was that Plaintiff would get a 25% ownership interest in the Subject Property and the Tang Defendants would g...

Excerpt: ...clad or its affiliated witnesses, the motion is denied. To the extent that Metalclad asserts that Plaintiffs should only recover its costs from Defendant pro rata according to its share of fault or its proportion of Plaintiffs' total recovery, the motion is also denied. Plaintiffs asserted and proved liability against defendants as joint and several tortfeasors and Plaintiffs' investigation of all potential sources of exposure was reasonably nece...

Excerpt: ... law claims for negligence and premises liability. Defendant Alameda Health System thereafter answered the Complaint on December 23, 2019. This is a personal injury action. According to the Complaint, Plaintiffs were stabbed by Defendant Derrian Germon when they went to Highland Hospital to visit Naomi Schneider, the mother of Mira and Lia, on March 24, 2019. In October 2020, Plaintiffs served Defendant Germon with the summons at Santa Rita Jail....

Excerpt: ... harassment claims against Defendant, his former employer. STANDARD OF LAW On a Motion to Seal Records under CRC Rule 2.551, the following rules from CRC Rule 2.550 apply: (d) Express factual findings required to seal records 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 inter...

Excerpt: ...erned about the untimeliness of the papers filed in opposition to the motion, the Court exercises its discretion to consider the late-filed papers. (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625).) STANDARD OF LAW "[T]he court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, includi...

Excerpt: ...t (2018) 28 Cal.App.5th 1146, 1156-1158, the court of appeal held that the Legislature did not intend to permit defendants and cross-defendants to file anti-SLAPP motions in limited civil cases when it enacted Section 425.16 in 1992. Defendant then immediately filed another anti-SLAPP motion even though the case is still classified as a limited civil case. Plaintiff cannot convert a limited civil case to an unlimited case simply by adding a praye...

Excerpt: ...ons are the basis for this action, in which Black seeks civil penalties on behalf of the State under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Lab. Code §§ 2698 et seq.). Plaintiff sought a preliminary injunction from this Court to enjoin the proceedings in arbitration. On July 7, 2020, before that motion came for hearing, Defendants voluntarily dismissed their arbitration demand without prejudice. After the dismissal, Blac...

Excerpt: ...rovide 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 Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the final order of the Court. ANALYSIS OF MOTION The parties do not...

Excerpt: ...2021, contesting party must email [email protected] and 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 Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will becom...

Excerpt: ...ly support its defenses or affirmative defenses in this case. Sutter indicated it was going to produce 65 documents. (Kelly Dec. Exh 6.) Sutter gave notice to Blue Shield. Blue Shield objects to Sutter producing the arbitration documents. The court provided its initial thoughts in a series of informal discovery conference emails dated 11/21/19, 12/3/19, 10/21/20, and 11/12/20. (CCP 2016.080.) The informal discovery conference emails were informal...

Excerpt: ...ions. There are approximately 196 members of the class. The claims against the settling defendants preliminarily settled for a total of $150,000. The settlement agreement states there will be attorneys' fees and cost of up to $45,000 (30%), costs of up to $16,000, a service award of $10,000 each for the two class representative, a net PAGA payment of $5,625, and settlement administration costs of up to $12,000. After these expenses, the class wou...

Excerpt: ...of up to $71,666.67 (33%), costs of up to $20,000, a service award of $2,500 for the class representative, a net PAGA payment of $6,000, and settlement administration costs of up to $10,000. After these expenses, the class would get approximately $102,833. The average payout per class members would be approximately $562. The settlement was mediated with the assistance of Steve Pearl. The court gives "considerable weight to the competency and inte...

Excerpt: ... claims are based on two practices. First, there are claims relating to nerve blocks. Sutter has a business practice of placing patients in operating rooms to perform nerve blocks. Sutter then charges for operating room time at NUBC revenue code 36x. Under the NUMC Manual, revenue code 36x is applicable only to "charges for services [related to] the performance of surgical and related procedures during and immediately after surgery as well as the...

Excerpt: ...ly support its defenses or affirmative defenses in this case. Sutter indicated it was going to produce 65 documents. (Kelly Dec. Exh 6.) Sutter gave notice to Blue Shield. Blue Shield objects to Sutter producing the arbitration documents. The court provided its initial thoughts in a series of informal discovery conference emails dated 11/21/19, 12/3/19, 10/21/20, and 11/12/20. (CCP 2016.080.) The informal discovery conference emails were informal...

Excerpt: ...later than thirty-five (35) days from the date of entry of this Order, unless the parties mutually agree in writing otherwise. This tentative ruling will automatically become the Court's final order on Friday, February 19, 2021 unless, by no later than 4:00 p.m. on Thursday, February 18, 2021, a party to the action notifies both: (1) the Court by emailing [email protected]; and (2) all opposing counsel or self-represented parties, tha...

Excerpt: ...ation") Motion for Summary Judgment is GRANTED. STANDARD OF LAW "A party may move for summary judgment 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." (CCP § 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl....

Excerpt: ... or have appeared at the time the Motion was filed, as expressly required by CCP § 36(c)(1). Rather than deny without prejudice, the Court will allow Plaintiffs an opportunity to correct this procedural error, if they can do so. STANDARD OF LAW "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) [t]he party has a substan...

Excerpt: ...ended responses have been served or will be served. Courtesy copies of the status report or reports should be emailed to Department 514 at the time of filing. If the parties are able to resolve their dispute, Plaintiffs should contact the Court promptly to take the motion off calendar. BACKGROUND Plaintiffs commenced this action on February 24, 2020 for alleged violations of the Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq....

Excerpt: ...ions, and motions to compel discovery, for late submissions of expert lists, and to compel expert depositions, and to serve a demand for disclosure of experts, to exchange expert lists, to complete discovery, and to complete depositions of non-supplemental experts, prior to trial are hereby extended and will now be based on the new trial date. STANDARD OF LAW "To ensure the prompt disposition of civil cases, the dates assigned for a trial are fir...

Excerpt: ...eneral Standards Resolution of a special motion to strike pursuant to Code of Civil Procedure (C.C.P.) section 425.16 involves two steps. In the first step, the defendant has the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined...

Excerpt: ...hat the accident occurred well after sunset because Plaintiffs were on a post-dinner walk. Plaintiffs were walking within a crosswalk. Plaintiffs had activated the warning light to alert cars on Driscoll Road that someone was crossing the street within the crosswalk. Defendant Chang struck one or both Plaintiffs with her vehicle. Plaintiffs contend that Defendant was using her cell phone and not paying attention to her surroundings. Plaintiffs ha...

Excerpt: ...d's locked vehicle and stole camera equipment worth approximately $91,004.00. After Plaintiff paid its insured on the property loss claim, it became subrogated to its right to assert a claim against Defendant landlord. Plaintiff asserts two causes of action against Defendant in its Complaint. Plaintiff's First Cause of Action is for Negligence. The Second Cause of Action, entitled "Res Ipsa Loquitur," is not in fact a cause of action but is inste...

Excerpt: ...ndant Loh. The declarations provided Peter Catalanotti and Michael Shepherd and Jessica M. Takano show hours billed at a "reasonable rate" but do not reflect the amounts actually billed to the client/insurer. PREVAILING PARTY In an action to enforce a contract authorizing an award of fees and costs to one party, the party "prevailing on the contract" is entitled to reasonable fees. (Civ. Code § 1717.) Here, the language of the lease agreement th...

Excerpt: ...and for Production of Documents (Set One), on Plaintiffs. When responses were not timely served, Ukoha-Ajike's counsel granted an extension and sent meet and confer letters that went unanswered. As responses have not been timely provided, any objections to the discovery requests have been waived. (CCP §§ 2031.300(a), 2030.290(a).) In opposition, Plaintiffs' counsel states that due to settlement discussions, counsel's failure to calendar discove...

Excerpt: ...d Demo's request for attorney's fees, not on the grounds that the fees incurred were unreasonable, but that Defendants were not entitled to fees related to Plaintiff's appeal of the anti- SLAPP motion. First, Plaintiff appears to argue that because the Court of Appeal did not specifically mention in their order that Defendants were entitled to fees and therefore the recovery of fees are precluded. Based on the case law, this is not an accurate re...

Excerpt: ...Complaint that he heard "abnormal noises on three occasions," and that some interior components are defective. Plaintiff claims that Defendant's authorized repair technicians were not able to resolve the problems despite having four opportunities to do so. Defendant has adequately shown that Plaintiff Shafran agreed to the terms of the Tesla Motor Vehicle Order Agreement on October 1, 2019. The Owner Advisor that assisted Plaintiff with the confi...

Excerpt: ...irst Amended Cross-Complaint was served by mail to counsel at an incorrect mailing address. See CCP §§ 425.16(f) and 1013. Counsel's correct mailing address is 11 Golden Shore, Suite 430, Long Beach, California 90802. Counsel has never used a different address since this action was filed in June 2020. Cross-Defendant has met his initial burden of establishing that Cross-Complainant's causes of action are based on his filing of his Complaint for...

Excerpt: ... on this motion to strike, whether the facts alleged by Plaintiffs in their Amendment to the 2nd Amended Complaint are true. (See Code of Civil Procedure section 437.) If Defendants contend that Plaintiffs do not have standing to bring this action under Code of Civil Procedure section 377.11, they may present evidence in support of that position at a later stage of this case. The Court rejects Defendants' argument that it must grant this motion b...

Excerpt: ...ther Responses to Form Interrogatory No. 15.1 is GRANTED. Defendant's Motion to Compel Plaintiff's Further Responses to: (1) SROGS Nos. 6 and 8-10; and (2) RFPDs Nos. 68 and 77 is GRANTED IN PART as set forth below. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, February 9, 2020, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the ten...

Excerpt: ...ents, Sets Two and Three in accordance with this Order, no later than seven (7) days from the date of this Order. As a threshold issue, the City contends that this Motion should be limited to the issue of scope of the discovery requests as it pertains to the Queen Mary, arguing that the other parts of the Motion were not discussed as part of the informal discovery conference. However, the Court finds that it would be a waste of judicial resources...

Excerpt: ...ing the motion had not been served electronically as the parties allegedly agreed, but rather served via US post upon defense counsel's office and which he claimed not to have received because due to Covid Shelter in Place rules, he was working remotely. The court ordered the motion to be served electronically and continued the matter for further briefing to October 1, 2020. Defendant filed no substantive response and filed a Notice of Non-Opposi...

Excerpt: ...uty was to travel to the homes of AIP's clients and provide therapy services. (See SSF Nos. 3 and 8 and the evidence cited in support.) In addition to being paid for time spent providing therapy services to AIP's clients, Sciutto was paid for nonbillable (i.e., administrative) work, travel time between client locations, and mileage for travel to the client's residences. (See SSF Nos. 6 and 9 and the evidence cited in support.) On the day of Plain...

Excerpt: ...fit. This contention is supported by neither the facts nor the law. California voters approved Proposition 64 on November 2, 2004. In doing so, the California Supreme Court held "the voters found and declared that the UCL's broad grant of standing had encouraged '[f]rivolous unfair competition lawsuits [that] clog our courts[,] cost taxpayers' and 'threaten[ ] the survival of small businesses....' (Prop. 64, § 1, subd. (c) ['Findings and Declara...

Excerpt: ...e declarations or the deposition transcripts attached by Plaintiff's counsel to the Complaint. The Court is required to accept Plaintiff's well-pled allegations as true for purposes of the demurrer. See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967. Counsel need not draft the Complaint as if he were opposing a motion for summary judgment. Based on its review of the Complaint, the Court agrees with Defendant's contention that Plainti...

Excerpt: ...he sufficiency of the complaint, i.e., whether it states facts sufficient 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, r...

Excerpt: ...action alleged in the Cross-Complaint are time-barred based on the 12/20/2019 date of filing of the Complaint in this action. However, the Court notes that, based on the allegations of Plaintiff's Complaint at ¶¶ BC-1 through BC- 4, Plaintiff's breach of contract action also appears to be time-barred pursuant to CCP § 337. Defendant may file and serve an amended Cross-Complaint no later than Tuesday, March 9, 2021. IF ANY PARTY WISHES TO CONTE...

Excerpt: ...ding deficiencies identified in the September 22, 2020 order. Cross-Complainant has pled a sufficient claim for Intentional Misrepresentation in its First Cause of Action. The demurrer to the First Cause of Action is therefore OVERRULED. Cross-Complainant alleges that its Chairman and CEO, Milton C. Ault III, met Cross-Defendant and Cross-Defendant's girlfriend when they were dining at one of Mr. Ault's restaurants, Guilia, in downtown Los Angele...

Excerpt: ...ows: The motion is DENIED. Legal Standard for Summary Adjudication "A party may move for summary adjudication as to one or more causes of action within an action, one or more 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, o...

Excerpt: ...nts motion for class certification (4 and ½ years after case filed); On 1/24/20, Judge Seligman order establishes 9/10/20 as five-year rule deadline; On 1/24/20, Judge Seligman sets trial for 8/24/20; On 5/27/20, Judge Seligman re-sets trial to 11/30/20. On 9/24/20, the parties file a stipulation setting the discovery cut off for lay witnesses for 1/8/21 and for expert witnesses for 1/25/21. The stipulation did not address written discovery or m...

Excerpt: ...raming argues that because LMV 19H Holdings posted a release bond there is now no lien on an owner's property, and the owner has no standing to file a Lambert Motion. The court finds that LMV 19H Holdings has standing to bring a Lambert motion. If a Mechanic's lien is recorded on property, then the property owner can bring a motion to remove an improper mechanics lien or to obtain an order confirming that the filing of a release bond has released...

Excerpt: ...DARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (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 matt...

Excerpt: ...graph 10) by allowing a male individual, to whom MBB referred as her "son", to annoy Ona's other tenants by behaving in an intimidating and threatening manner. (See Second Amended Cross-Complaint, paragraph 9.) As a result of this alleged behavior, Ona claims to have incurred two types of damages which Ona seeks to recover from MBB. First, Ona seeks to recover the costs of repairing and renovating the apartments of other tenants who vacated the p...

Excerpt: ...red his driveway or towed his vehicle; rather, he appears to be alleging that some other individual(s) (not WE) did that. If Plaintiff believes that the person(s) who entered his driveway and towed his vehicle (e.g., Doe 1) were AHR employees acting within the course and scope of their employment, Plaintiff shall clearly allege that. As the Second Amended Complaint is currently pled, it is unclear whether Plaintiff is alleging that the actions of...

Excerpt: ... action adequately allege facts supporting 414LS's claims. 414LS sues Fields for breach of a Guaranty of Lease ("the Guaranty") in which Fields guaranteed the obligations of lessee Herban Industries LLC ("Herban"). The Guaranty executed by Fields guaranteed "each and every one of the terms, conditions, and covenants" to be performed by Herban under its lease with 414LS. The Guaranty further provided that terms of Herban's lease could be modified ...

Excerpt: ...Three - Dangerous Condition of Public Property" in Plaintiff's Second Cause of Action for Premises Liability, the City's motion is DENIED. In ruling on a motion for summary judgment, the Court strictly scrutinizes the moving party's evidence and resolves any evidentiary doubts or ambiguities in the opposing party's favor. (See, e.g., Johnson v. American Standard Inc. (2008) 43 Cal.4th 56, 64 and Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th...

Excerpt: ...pervisor. The two had personal, non-work related, relationship. (UMF 6; DX 2 [text messages of 10/20/17].) Between 4:28 and 7:08 am in the morning of 10/30/17 Knight sent Lara multiple text messages of an arguably oversharing and arguably sexual nature. (UMF 8.) Lara reported the incident to management. (UMF 10) The Regents offered Lara paid time off. (UMF 10) The Regents decided to not discipline Knight because there was no prior history, this w...

Excerpt: ...nafter "Agreement") on November 19, 2017 in which Cross-Defendant CAL FMC, LLC, agreed to fully indemnify and defend Cross-Complainant Sonesta International Hotels Corporation for the allegations against Cross-Complainant as described in Plaintiff's Complaint filed on May 21, 2019. (FACross-Complaint, ¶¶ 4 and Exhibit A) The third cause of action seeks Declaratory Relief as to the rights, liability and duties of the parties pursuant to the Agre...

Excerpt: ...ion, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (CCP § 437c(f)(1).) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Id.) "[T]he party movin...

Excerpt: ...th 1203, 1207-1209, cited by Judgment Creditor, dealt with a claim for recovery of mediation costs and not messenger costs. Although the Court has the discretionary authority to allow Judgment Creditor to recover the messenger costs, it declines to do so in this instance. Judgment Debtor's objection to the filing fee for the application of James M. Roche to appear as counsel pro hac vice for Plaintiff is overruled. Judgment Debtor fails to make a...

Excerpt: ...er fire-fighter who was terminated by defendant Alameda County Fire Department ("Defendant") in November 2018. Defendant contends that Plaintiff was terminated for violations of Defendant's workplace violence policy. Plaintiff alleges that the reasons given for the termination were pretextual. Defendant seeks to have the following language added to the Protective Order entered by the Court on 6/11/2020: "Plaintiff and anyone on his behalf, shall ...

Excerpt: ...TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, 2/9/2021, contesting party must email [email protected] and 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 Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If...

Excerpt: ...have recorded the deed of trust that give rise to Larry Hester's slander of title claim or to have committed any other act that constitutes slander of title. The demurrer by FNTC is OVERRULED. Larry Hester alleges that FNTC recorded a deed of trust executed by Michael Hester as trustor in favor of Ryan Alexander as beneficiary, knowing that Michael Hester had no interest in the subject real property that would allow such a recording. (See First A...

Excerpt: ... services, provided they were of direct benefit to the defendant. The burden is on the person making the quantum meruit claim to show the value of the services. The "reasonable value" of the services has been described as the "going rate" for the services or the "reasonable market value at the current market prices" (Children's Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1274.) Anthem served discovery conc...

Excerpt: ...T. STANDARD OF LAW "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her," or "[t]o stay or dismiss the action on the ground of inconvenient forum." (CCP § 418.10(a).) "Failure to make a motion under this section at the time o...

Excerpt: ...t email [email protected] and 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 Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the final order of the C...

Excerpt: ...at evidence of communications made during the course of the DRA Process is not precluded by § 1119 et seq. A mediation is a process in which a neutral person facilitates communications between disputants to assist them in reaching a mutually acceptable agreement. (See Evidence Code § 1115(a).) A mediation generally takes one of two forms. In a classic mediation, the mediator meets directly with the parties to facilitate negotiation. (See, e.g.,...

Excerpt: ...aint and in her opposition that she identifies as Hispanic and Latino. Although Plaintiff was born in Mexico, she has lived in Lake County for many years and is fluent in Spanish and English. Defendant NUHW represents about 15,000 healthcare workers holding various positions in California. Defendant NUHW hired Plaintiff as an internal union organizer in September 2015. Plaintiff testified that her responsibility was to generate more enthusiasm fo...

Excerpt: ...eto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists," except under certain situations outlined by statute. (CCP § 1281.2.) The Court will not order arbitration of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist for the revocation of the agre...

Excerpt: ...s: . . . [w]hen it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually," "[w]hen pecuniary compensation would not afford adequate relief," and/or "[w]here it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief....

Excerpt: ...than 4:00 PM ONE on Monday, February 8, 2021, contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. If a hearing is requested, the hearing will be conducted via COURTCALL. If not timely contested, and the tentative ruling will become the final order of the Court. RELEVANT EVIDENCE In its Moving papers, Honeywell initially points out that Plain...

Excerpt: ...e prepared to discuss the length of the continuance in light of the 5/3/2021 trial date in this action and the specific jurisdictional discovery Plaintiff wishes to conduct. The Tuesday, 2/9/2021 at 3:00 p.m. hearing will be conducted via COURTCALL. RELEVANT EVIDENCE In its Moving papers, Navistar initially points out that Plaintiff's Complaint specifically alleges at pp. 2:2-6 and 2:27-3:1, that Plaintiff was exposed to asbestos in the 1950's an...

Excerpt: ...t may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of the proceeding[.]" (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 488-89.) A court's discretion is usually exercised liberally to permit amendment of the pleadings, and it is a rare case in which denial of leave to amend can be justified. (S...

Excerpt: ...nts motion for class certification (4 and ½ years after case filed); On 1/24/20, Judge Seligman order establishes 9/10/20 as five-year rule deadline; On 1/24/20, Judge Seligman sets trial for 8/24/20; On 5/27/20, Judge Seligman re-sets trial to 11/30/20. On 9/24/20, the parties file a stipulation setting the discovery cut off for lay witnesses for 1/8/21 and for expert witnesses for 1/25/21. The stipulation did not address written discovery or m...

Excerpt: ...�§473.5, 473(b), (d).) Accordingly, the entry of default entered on June 19, 2020 against Defendants Biotree HealthCare Partners Limited, Biotree Harmony Limited, Hao Zhou is hereby SET ASIDE. Defendants shall file their proposed answer and cross-complaint in the form attached as Exhibit 1 to the Declaration of Bing Zang Ryan in support of Defendants' Reply. The answer and cross-complaint shall be filed by February 19, 2021 and served forthwith....

Excerpt: ... assertion made by defense counsel. In Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872, the court of appeal specifically declined to determine whether the plaintiff alleged sufficient facts to support a prayer for punitive damages because it agreed with the holding of the trial judge that the so-called "Second Count" was not an adequately pled cause of action. The court reviewed the case after the trial judge sustained the defendant's demurrer...

Excerpt: ... Mann decided that further exploration of the foot would not be useful. (UMF 13.) Following the surgery, plaintiff observed that the incision was not in the expected location and was larger than expected. Plaintiff reported pain in her left foot. (UMF 14, 15.) EXPERT EVIDENCE / BURDEN SHIFTING "[W]hen considering the declarations of the parties' experts, [the court must] liberally construe the declarations for the plaintiff's experts and resolve ...

Excerpt: ...lowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation" and "shall be reasonable in amount." (CCP §§ 1033.5(c)(2)-(3).) First, Plaintiff challenges $32,940.66 incurred by Defendant for 17 depositions. Plaintiff argues that those costs are not recoverable due to the fact that Defendant recovered only $8 for its cross-claims compared to the Code of Civil Procedur...

Excerpt: ... award of attorneys' fees in this case. The Court rejects Plaintiff's argument in his opposition brief that Plaintiff could recover attorneys' fees against Defendant under the doctrine of the tort of another. The tort of another doctrine permits a plaintiff to recover attorneys' fees incurred where the tort of "another" requires the plaintiff to bring or defend an action against a "third person" to protect his interests. Here, Defendant is both t...

Excerpt: ...This case involves a dispute between Defendant Huang and her former attorney, Linda Shao, of Shao Law Firm. Plaintiff represented Defendant in litigation involving a business dispute in this Court. That case was assigned case number RG16804034. Plaintiff caused Defendant to be personally served with the summons on July 10, 2020. Counsel for Defendant states that his client told him that she was served on July 15, 2020. Based on this information, ...

Excerpt: ...ed an extremely lengthy separate statement identifying 80 undisputed material facts in support of its motion for summary adjudication for two causes of action. After reviewing the "material facts" the court finds that the majority of the material facts are not in fact "material facts" but rather facts that are irrelevant. Given the number of facts, the court is unable to easily determine the material facts, as is the purpose of the separate state...

Excerpt: ...orporate opportunity; and (6) corporate derivative action. In paragraph 4 of the Complaint, Plaintiff alleges that Defendant Pudas was a member of the board of directors of Clean Battery Recycling, Inc., a California corporation, and the company's Chief Executive Officer. Defendant Pudas was also alleged to be the chairman of the board and Chief Executive Officer of Defendant Akkuser Oy. Clean Battery Recycling, Inc. was incorporated on or about ...

Excerpt: ...tortfeasors or co-obligors, upon giving notice[.]" (CCP § 877.6(a).) "A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." (CCP § 877.6(c).) To determine whether a settlement i...

Excerpt: ...nt or admitted liability to Plaintiff. Second, Plaintiff must allege, if possible, that he justifiably relied on Defendant's alleged misrepresentation to his detriment. Plaintiff does not allege that Defendant made any misrepresentation to him; he alleges that she made a misrepresentation about the cause of the accident to her own insurance company. Plaintiff does not allege that he relied on Defendant's purported misrepresentation to her own ins...

Excerpt: ...they allege facts supporting each element of the claim with specificity. See CACI No. 1900; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; and Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiffs are required to provide some details regarding statements made to them by Defendant Wright regarding his agreement to disburse to them the $200,000.00 loan and the $50,000.00 in interest from the gate receipts as a lin...

Excerpt: ...iff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) The general venue statute states that "[e]xcept as otherwise provided by law and subject to the power of the court to transfer ...