Excerpt: ... OVERRULED. Legal Standard for Demurrer A general demurrer tests the 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. § ...

Excerpt: ...y Act and Fair Employment and Housing Act claims alleged in the original Complaint and First Amended Complaint. Plaintiff filed his Second Amended Complaint on 5/14/2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Friday, June 11, 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...

Excerpt: ...a deposition, the 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, including protective orders." (CCP § 1987.1(a).) "In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of ...

Excerpt: ...Plaintiff asserts in this case fall within the scope of disputes that Plaintiff agreed to arbitrate in the MVOA and the RISC. The Court rejects Plaintiff's argument that Defendant lacks standing to enforce the parties' arbitration agreement because it assigned its interest in the RISC to US Bank. Plaintiff's claims against Defendant arises out of its purchase of Defendant's vehicle, and therefore Plaintiff has expressly agreed to arbitrate those ...

Excerpt: ...hes of contract and statutory violations related to its actions as a PBM. The motion to compel arbitration presents several issues about several agreements. The court addresses them separately. DOES ARBITRATOR DECIDE ARBITRABILITY As a general principle, "the enforceability of an arbitration agreement is ordinarily to be determined by the court. The parties may agree in the arbitration provision, however, that the enforceability issue will be del...

Excerpt: ...y 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. (See, e.g., Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) "[I]t...

Excerpt: ...e presented and instead believed that it would be best for the Court to make the call. The entire reason the Legislature imposed a meet-and-confer requirement for demurrers and other pleadings motions was that too many litigants were asking the court to make the call. The Legislature determined that California trial courts were spending too much time and effort resolving endless rounds of pleadings challenges. Plaintiff must relent if he is not a...

Excerpt: ...le amount not less than five hundred dollars ($500)...." (C.C.P. § 483.010.) The following findings must be made "in accordance with Section 483.015" to justify issuance of an attachment order: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for purposes other th...

Excerpt: ...6-1087.) Class actions cannot be dismissed without Court approval to ensure that the named plaintiff and his or her counsel have not used the threat of a class action as leverage to obtain an unreasonable settlement for the individual named plaintiff. This serves two purposes. First, this ensures that the named plaintiff and his or her counsel do not enrich themselves in violation of their fiduciary duties to the absent class members. (Pirjada v....

Excerpt: ... conduct and requiring them to take certain specified actions. This action arises from a dispute over control of the Mohammadia Islamic and Cultural Center ("the Center"), which owns and occupies real property located at 492 C Street, Hayward ("the Center's premises".) Sarwary, Hassanpour, and Basil claim to be officers of the Center and to serve on the Center's Board of Directors. Habib, et al. contend that a new election for the Center's Board ...

Excerpt: ...emurrer to the First Cause of Action for Promissory Fraud and Second Cause of Action for Cancellation of Written Instrument with leave to amend. The Court overruled Defendants' demurrer to the Third, Fourth and Fifth Causes of Action. Plaintiff did not file the First Amended Complaint until March 17, 2021. Plaintiff and Defendants submitted two stipulations seeking additional time for Plaintiff to comply with the Court's order of January 12, 2021...

Excerpt: .... As Plaintiff was chasing the intruders off his boat, he tore his Achilles tendon. Plaintiff seeks to hold the City liable for his injury under several legal theories. The demurrer to the First Cause of Action for "Vicarious Liability of Public Entity for Negligent Acts or Omissions of its Employees Pursuant to Government Code Section 815.2" is SUSTAINED, WITH LEAVE TO AMEND. To the extent that Plaintiff seeks to hold the City liable for its emp...

Excerpt: ...ohammad Aslam Habib and Mohammad Husain Nusratty have any standing to assert the First, Second, Third, and Fourth Causes of Action. The demurrer to the First Cause of Action for Conversion is SUSTAINED, WITHOUT LEAVE TO AMEND. Plaintiffs fail to allege facts demonstrating Defendants' conversion of funds belonging to the Mohammadia Islamic and Cultural Center ("the Center"). To the contrary, the First Amended Complaint alleges that the funds remai...

Excerpt: ...long as the amendment is "in the furtherance of justice, and upon such terms as may be proper." (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...

Excerpt: ... a response to this information without an affirmative "opt in" from its current and former employees. ANI argues that the Belaire-West process of providing employees the opportunity to "opt out" of having their information provided is no longer acceptable following the California Consumer Privacy Act ("CCPA") and California Privacy Rights Act ("CPRA"). The CCPA became effective January 1, 2020 (Stats. 2018, ch.55, § 3 [amending Civ. Code § 179...

Excerpt: ...pay for the cost of preparing the record on appeal. (Govt Code 6103.) On 3/26/21, Plaintiff Muchnick then elected to use an appendix under CRC 8.124. PROCEDURE This motion concerns the interpretation and application of Rules of Court that relate to the record on appeal. CRC 8.124(a)(1) states that the superior court is to resolve disputes about the use of an appendix. APPLICATION OF GOVT CODE 6103 The Regents is a public entity, so the Govt Code ...

Excerpt: ... partnership, Clovis Body & Paint, owned by Plaintiff Lim and her son. There was a fire on May 11, 2016. Defendant is the property insurer. Defendant agreed to cover most of the loss and paid Plaintiff and the other owners the sum of $450,641.00. Defendant, however, declined to pay for damage to an industrial paint spray booth. Defendant contends that the industrial spray booth was owned by the tenant and was therefore not part of the insured pre...

Excerpt: ...e court finds that although Plaintiff sought an IDC first in December 21, 2021, due to limited scheduling for informal discovery conferences, the IDC was not able to be scheduled until April 9, 2021 and during that time, the time period to file was tolled since Plaintiff was unable to obtain a reservation number to file the motion until after the IDC occurred. The court therefore considers the motion on its merits. Plaintiffs' request to compel f...

Excerpt: ...ameda County. (1AC, para 8, 11.) The order of 3/4/21 denied Defendant's previously filed a motion to change venue. The citations to paragraphs in the 1AC in the prior order demonstrate that he court was considering the 1AC to be the operative complaint. Regarding CCP 395.5, the prior order states: "Defendant does not present evidence that it makes no sales in Alameda County and ships no product to Alameda County. Plaintiff conversely does not pre...

Excerpt: ...the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5.) The court's review is whether there is substantial evidence in the record to support the factual findings. "Substantial evidence" is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. ... Such evidence must be reasonable, credible, and of solid value." (California Youth A...

Excerpt: ...rts claim for negligence, habitability, and violation of the Oakland Tenant Protection Ordinance. Defendant AMP Property Management owned the property after December 2018. AMP Property Management in in default. There is evidence that the unit was unlawful, suggesting that the lease agreement was unlawful. It is unclear whether the underlying lease is invalid and subject to rescission and plaintiff is entitled to a refund of some or all of the ren...

Excerpt: ...e is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to ...

Excerpt: ...mployee who allegedly suffers a wrongful termination as a result of reporting or refusing to participate in her employer's pattern of conduct in violation of RICO does not have standing to sue under Rico because the employee was not proximately injured by the alleged corrupt pattern of conduct. (Reddy v. Litton Industries, Inc. (9th Cir. 1990) 912 F.2d 291, 294, stating in relevant part: "All of the circuit courts that have considered this issue ...

Excerpt: ...vailable generally in the protection or to prevent the invasion of a legal right. (Meridian, Ltd. v. City and County of San Francisco, et al. (1939) 13 Cal.2d 424.) The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the la...

Excerpt: ...t the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of...

Excerpt: ...h the hearing will be conducted in advance of the hearing. The Court has reviewed the parties' respective papers and provides the following to focus discussions at the hearing. The Court is inclined to grant Plaintiff's Motion. Defendants' Opposition does not appear to contest Plaintiff's request that trial be bifurcated into a liability phase followed by a damages phase. Instead, Defendants' Opposition appears to focus largely on legal disputes ...

Excerpt: ... partnership, Clovis Body & Paint, owned by Plaintiff Lim and her son. There was a fire on May 11, 2016. Defendant is the property insurer. Defendant agreed to cover most of the loss and paid Plaintiff and the other owners the sum of $450,641.00. Defendant, however, declined to pay for damage to an industrial paint spray booth. Defendant contends that the industrial spray booth was owned by the tenant and was therefore not part of the insured pre...

Excerpt: ... for cannabis use and fails to inform the customers that they will be exposed to smoke as a reasonably foreseeable use of the product. (H&S 25249.6.) The 1AC filed 1/20/21 is the operative complaint. The 1AC asserts that defendant distributes its products in Alameda County. (1AC, para 8, 11.) The order of 3/4/21 denied Defendant's previously filed a motion to change venue. The citations to paragraphs in the 1AC in the prior order demonstrate that...

Excerpt: ...ailer worker employed by Defendant from 2016 until 2020. Plaintiff alleges in paragraph 1 of the Complaint that he is representing the State of California and "other current and former employees at a retail store location" who were employed from April 24, 2019 until the date when judgment is entered. Plaintiff initially requested that the case be deemed complex and assigned to Department 23. On October 6, 2020, Plaintiff's request that the Court ...

Excerpt: ...r summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if, and only if, the eviden...

Excerpt: ...t there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shif...

Excerpt: ...98) [Unpublished].) The COVID-19 pandemic started in March 2020. The COVID-19 pandemic has exposed and highlighted certain deficiencies in the California educational system In June 2020, the State of California enacted SB 98, which authorized distance learning and authorized $5.3 billion to assist school districts with that and other COVID related challenges. As of June 2021 (the date of the hearing), the COVID-19 pandemic is not over. As of June...

Excerpt: ...vailable generally in the protection or to prevent the invasion of a legal right. (Meridian, Ltd. v. City and County of San Francisco, et al. (1939) 13 Cal.2d 424.) The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the la...

Excerpt: ...parties submitted a revised settlement agreement and class notice on April 14, 2021. The parties also filed a declaration regarding S&F's financial condition conditionally under seal and also now move to seal that record on grounds of financial privacy. CHANGES TO MOTION FOR PRELIMINARY APPROVAL The Court's concerns regarding participation by absent class members at the final approval hearing have been addressed by the notice and agreement's prov...

Excerpt: ...s attending California public schools. (Butt v. State of California (1992) 4 Cal.4th 668 (Butt).) Compton seeks to intervene, asserting that the case involves issues that cannot be resolved without their participation and that resolving the case with their involvement would impair their interests Compton's proposed compliant in intervention includes claims that are not currently in the case MANDATORY INTERVENTION Mandatory intervention is governe...

Excerpt: ... deadline is currently set for July 30, 2021. The trial is set to begin in January 2022. Plaintiff now moves for leave to file a Third Amended Complaint to add US eDirect, Inc. ("US eDirect") as a defendant. US eDirect was a subcontractor to Defendants as part of Defendants' larger contract with the California Department of Parks and Recreation ("DPR"). The principal role of US eDirect was to develop ReserveCalifornia.com and testing the website ...

Excerpt: ...dmitting 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.3d 311, 318.) The court notes that both sides cite federal pleadings cases. Such cases apply federal ...

Excerpt: ...h the hearing will be conducted in advance of the hearing. The Court has reviewed the parties' respective papers and provides the following to focus discussions at the hearing. The Court is inclined to grant Plaintiff's Motion. Defendants' Opposition does not appear to contest Plaintiff's request that trial be bifurcated into a liability phase followed by a damages phase. Instead, Defendants' Opposition appears to focus largely on legal disputes ...

Excerpt: ...herance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether Plaintiff has demonstrated a probability of prevailing on the claim. Plaintiff demonstrates this by showing the Complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted ...

Excerpt: ...ack to 7/5/19. The LWDA's claims for penalties against Lucid extend back to 8/31/19. FACTS On 9/26/19, plaintiff started employment. (1AC, para 6.) On 10/28/20, Plaintiff stopped employment. (1AC, para 6.) On 12/22/20, Plaintiff sent a PAGA letter to the LWDA regarding defendant Atieva. On 12/30/20, plaintiff filed this case against defendant Atieva. On 1/22/21, Plaintiff sent a PAGA letter to the LWDA regarding defendant Lucid. On 2/24/21, plain...

Excerpt: ... personally served with the Summons and Complaint on June 23, 2020. Defendants' defaults were entered on 10/13/20. Pursuant to the request of Plaintiff, the court entered Default Judgment against the defendants on March 1, 2021. Defendants filed the instant Motion to Set Aside Default and Default Judgment on April 27, 2021. According to the Defendant's motion, this case is one of a trio of cases filed by Plaintiff Elvecio Machado against his brot...

Excerpt: ...eXpress of the intent to contest the tentative order. If a hearing is requested, the hearing will be conducted on Tuesday, June 8, 2021 at 3:00 p.m., using the bluejeans network. 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. Plaintiffs allege that Mr. Atkinson wa...

Excerpt: ...y shifts the burden of production of evidence to Plaintiffs William Cook ("Mr. Cook") and Laurel Cook ("Plaintiffs"), the Court finds that Plaintiffs have submitted sufficient evidence in opposition to identify a triable issue of material fact regarding threshold exposure. Defendant's Motion for Summary Adjudication is GRANTED as to Plaintiffs' punitive damages claim. Plaintiffs "waive" the punitive damages claim in footnote 1 of Plaintiffs' brie...

Excerpt: ...re will be attorneys' fees and cost of up to $50,000 (40%), costs of up to $TBD, a service award of $4,000 for each class representative, and settlement administration costs of up to $8,000. After these expenses of approximately $80,000, the class would get $45,000. The average payout per class members would be $1,250. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion ...

Excerpt: ...re will be attorneys' fees and cost of up to $50,000 (40%), costs of up to $TBD, a service award of $4,000 for each class representative, and settlement administration costs of up to $8,000. After these expenses of approximately $80,000, the class would get $45,000. The average payout per class members would be $1,250. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion ...

Excerpt: ...ake any supplemental filings at least 5 court days before the hearing. LWDA/PAGA RELEASE The settlement agreement does not expressly release the claims of the LWDA that were asserted in the case. The briefing suggests that the parties intend to release the claims of the LWDA for penalties. In any such release, the named plaintiff acting as agent or proxy of the LWDA releases the claims of the LWDA. The named plaintiff does not represent the "aggr...

Excerpt: ...attorneys' fees of up to $172,500 (30%), costs of up to $15,000, a service award of $7,500 for the class representative, a net PAGA payment of $18,750, and settlement administration costs of up to $15,000. After these expenses, the class would get $327,000. The average payout per class members would be $3,800. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an ...

Excerpt: ... sold by T-USA. Ryan Mark has sued UC, alleging a dangerous condition of public property, and he has also sued T-USA for various product liability claims. In its First Amended Cross-Complaint, T-USA alleges causes of action against UC for indemnity (both equitable and contractual) and declaratory relief. T-USA has also alleged a Sixth Cause of Action against UC for dangerous condition of public property. However, T-USA has not alleged that it was...

Excerpt: ...of which Plaintiff was also the co- founder) because Plaintiff had sexually assaulted an employee. McSilva allegedly reposted Arkin's defamatory posts with additional commentary, specifically "Salesforce this sexual predator now works for company as Global Head of Product for Music and Entertainment. What are you going to do about it?" As a result of that posting, Plaintiff alleges he was fired from his employment at Salesforce. As to Plaintiff's...

Excerpt: ...essive speed given the conditions. Plaintiff further alleges that Defendant admitted that he was inattentive and that he could not explain why he failed to stop his vehicle. The Court does not agree with Defendant's assertion that Plaintiff is required to meet a heightened pleading standard when seeking punitive damages. There simply is no clear authority for this common assertion made by defense counsel. In Brousseau v. Jarrett (1977) 73 Cal.App...