Excerpt: ...l.App.2d 813, 817 ["the power of a court to stay proceedings ... was inherent at common law and is now vested in the superior courts of this state"].) (See also CCP 410.30(a).) ORDER FOR STAY Operating Engineers sued Caribou in a federal action. (Operating Engineers v. Caribou, ND Cal Case No. 13:8-cv-02086. Operating Engineers and Caribou entered into a stipulated judgment. The stipulated judgment at para 3 states that Padilla personally guarant...

Excerpt: ...ugh first noticed the deposition of Plaintiff for October 8, 2019, but took the deposition off calendar when Plaintiff failed to respond to written discovery. On September 30, 2020, McCullough served another deposition notice for October 27, 2020. On October 16, 2020, Plaintiff acting in pro per, canceled the deposition and stated she was unavailable. On November 16, 2020, McCullough served a third deposition notice for December 11, 2020, which w...

Excerpt: ... or proceeding is pending, shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]") STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the responde...

Excerpt: ...RT ASSUMES VENUE IS PROPER IN ALAMEDA Plaintiff's choice of venue is presumed to be correct. See Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666 ("The burden rests on the party seeking change of venue to defeat the plaintiff's presumptively correct choice of court. When the defendant is a corporation, it has the burden of negativing all the five possible bases of venue articulated in section 395.5."). Section 395.5 states: ...

Excerpt: ...elected the proper venue." (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) MOTION TO TRANSFER VENUE Plaintiff Jack Steen ("Plaintiff") brought this action against Defendant, asserting claims of general negligence and premises liability based on a March 2, 2019 incident wherein an automatic door at the entrance of a Safeway store in Napa, California, automatically closed on him, striking his right shoulder and causing him to fall on ...

Excerpt: ...nted MERS's motion to dismiss the claims seeking to cancel the deeds. In January 2013, Malfatti filed a second federal lawsuit involving the property, Malfatti v. Specialized Loan Servicing LLC., U.S. District Court-N.D. Cal., Case No. C13-00287), in which he sued SLS, MERS, and HSBC for wrongful foreclosure. Malfatti voluntarily dismissed the case without prejudice. In March 2016, Malfatti v. MERS, Alameda Case RG16-808857, Malfatti (represented...

Excerpt: ... the class representative, a net PAGA payment of $11,250, and settlement administration costs of up to $7,500. After these expenses of approximately $127,900, the class would get $147,083. There are 145 members of the class. The average payout per class members would be $1,014. 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 ...

Excerpt: ...er a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court 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...

Excerpt: ...greement states there will be attorneys' fees and cost of up to $900,000 (33%), costs of up to $65,000 [included with fees], a service award of $10,000 for each of three class representatives, a net PAGA payment of $37,500, and settlement administration costs of $32,642.35. After these expenses, the class would get $1,624,857. The average payout per class members would be $500. The proposed class notice form and procedure are adequate. There were...

Excerpt: ... the [PAGA] does so as the proxy or agent of the state's labor law enforcement agencies." (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175, 185; Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 671.) A person asserting a claim on behalf of the LWDA under PAGA must obtain court approval for any settlement. Labor Code 2699(l)(2) states: "T...

Excerpt: ...to Strike is GRANTED IN PART and DENIED IN PART as set forth below. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, 1/26/2021, 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 w...

Excerpt: ...laintiff's compliance with its discovery obligations starting in July 2020. The parties should know that the Court did review their memoranda and the declarations of counsel. The Court agrees with Defendant's contention that it was more than accommodating to Plaintiff's counsel when repeated requests for additional time were made. The Court notes that Plaintiff waited until almost sixty (60) days had passed after Defendant served the motion to co...

Excerpt: ...exist therefor." (CCP § 527(a).) "The law is well settled that the decision to grant [a restraining order] rests in the sound discretion of the trial court." (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal. App. 4th 1244, 1251 [internal citations omitted].) "[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue [a restraining order]." (Id.) "The first is the likelihood that the plaintiff wil...

Excerpt: ...categories of persons. At issue in this case is CCP 203(a)(11), which states: "(a) All persons are eligible and qualified to be prospective trial jurors, except the following: ... (11) Persons who are currently required to register as a sex offender pursuant to Section 290 of the Penal Code based on a felony conviction." Plaintiff asserts a single cause of action asserting that the legislative action eliminating the categorical exclusion for most...

Excerpt: ...tion 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 pleaded. (Aubry v. Tri-City Hosp. Dis...

Excerpt: ...ica Waddell, Owen Rosenberg, Carrie McDougle, Chris Lemke, and Angela Miller move to intervene in this litigation and have filed papers in opposition to the motion for approval. Both Clark and SCJ oppose the motion to intervene. All non-parties except Michelle Moran subsequently withdrew their motion to intervene. If any party timely contests this tentative ruling, argument will be heard before Judge Michael Markman by videoconference on Tuesday,...

Excerpt: ...representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer." (Cal. R. Prof. Conduct, R. 4.2(a) [comments to rule states: "This rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is on...

Excerpt: ...iff opposed the motion with a three part argument. First, as a matter of law, an employee plaintiff suing under the PAGA does so as the proxy or agent of the state's labor law enforcement agencies. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381; Z.B. N.A. v. Superior Court (2019) 8 Cal.5th 175, 185; Kim v. Reins International California (2020) 9 Cal.5th 73, 81.) Second, as a matter of fact, the state agencies are not a party...

Excerpt: ...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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, 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 eith...

Excerpt: ...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. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persu...

Excerpt: ...d 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 fact regarding the cause of ...

Excerpt: ...� 437c(a)(1).) "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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damage...

Excerpt: ... PM on Friday, January 29, 2020, the 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 ...

Excerpt: ...llegations 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 matters of which judicial notice has been taken." (Id.) "As a general ru...

Excerpt: ...mended Complaint because plaintiff attached it to the earlier complaint. (Vanacore & Associates, Inc. v. Rosenfeld (2016) 246 Cal.App.4th 438, 446.) The court does not consider the facts in the declaration of Muse Favacho. The court considers it only as a suggestion of how plaintiff might amend the complaint. On 3/6/16 Muse Brands entered into a contract with Chloupek as COO of BAS Research concerning a brand identity for BAS Research. Muse Brand...

Excerpt: ...MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "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. Richfield...

Excerpt: ...(1).) "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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, 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 . . . ,...

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: ... 2.) On 8/2/18, plaintiff used a DOE amendment to name "NevCal Trucking" as a defendant. On 11/21/18, NevCal Trucking filed an answer. ANALYSIS AND ORDER Defendant NevCal Trucking asserts that the claim is barred by the statute of limitations. The statute of limitations is two years. (CCP 335.1.) The complaint when filed did not name NorCal Trucking. A plaintiff may, however, use the CCP 474 DOE amendment procedure. The amendment can relate back ...

Excerpt: ...tion . . . or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the...

Excerpt: ... the Adult Protective Services is part. The court did not receive an opposition on behalf of the Long Term Care Ombudsman of the County of Alameda but the interests and law appear to be applicable to both entities. Given that the motion was brought as one motion as to both subpoenas, the court will consider the two subpoenas together. Second, Welfare & Institutions Code section 9275 deems the investigation materials as confidential. (Ombudsman Se...

Excerpt: ... at the rate charged by the parties. Additionally, Defendant, specifically counsel Peter Catalanotti and Michael Shepherd, are to provide a declaration providing a summary of the fees that are attributable only to Defendant Loh (as opposed to split or apportioned fully to Loh even though work was performed on behalf of both Wellington Properties and Loh, such as for depositions or court appearances) at the various hourly rates at the different fi...

Excerpt: ... is directed. The Court observes that the Complaint does not allege that Defendant Hakim Hassanpour engaged in any conduct giving rise to Plaintiffs' claims. The demurrer to the First Cause of Action for Conversion is SUSTAINED, WITH LEAVE TO AMEND to clearly identify the funds converted (including the amount), who converted them, and from whom the funds were converted. As the Complaint is currently pled, it appears that the funds at issue remain...

Excerpt: ... 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 matters of which j...

Excerpt: ...possession of such property at the time of the commencement of the action, although it is not essential that he should show that he ever had actual possession of it." (Commercial Disc. Co. v. Cowen (1941) 18 Cal. 2d 610, 613.) "Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is broug...

Excerpt: ...ca.gov 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 Court. On 6/23/2018, Plaintiff a...

Excerpt: ...).) Plaintiff claims that when the complaint was filed on 9/25/20 it was owed $94,154.36 in back rent and that as of 9/30/21 (eight months after the hearing) the defendants will owe an additional $88,111.29 in additional rent, for a total amount of $182,265.65. Plaintiff seeks to attach the property of Balwinder Virk, Kulwinder Kaur, Gian Chand, Rakshi Rani AKA Raksha Rani, Nawab's Kitchen, Inc., Rewa Kumar, and Gurwinder Singh. The amount. The a...

Excerpt: ...he First Amended Complaint, Plaintiff alleges that he resides at the property. On December 5, 2006, Plaintiff obtained a mortgage loan from Mortgageclose.com, Inc. in the sum of $139,000.00. The lender recorded a Deed of Trust in the Official Records of Alameda County on December 6, 2016. On August 19, 2019, an Assignment of the Deed of Trust was recorded that assigned the Deed of Trust from Mortgageclose.com, Inc. to U.S. Bank. On January 16, 20...

Excerpt: ... 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 alleged in the pleading are deemed to be true, however improbable they may b...

Excerpt: ... "the Trust"). Plaintiffs and Cross-Defendants Calvin Howard and Howard's Earth Boring Services Inc. ("HEBS") do not appear to expressly deny that the Trust is the current title owner of the subject property. Rather, Howard and HEBS contend that the subject property is subject to a pre- existing "Lease Agreement with Option to Purchase Real Estate" ("the RCJ Lease") entered February 1, 2019 between the prior owner of the subject property, Flynn R...

Excerpt: ... 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. As a preliminary matter, the Court had difficulty understanding exactly what the parties' respective positions were...

Excerpt: ...ns at the hearing, the Court provides the following Tentative Ruling on the Motion to Quash. The Motion to Quash is GRANTED IN PART as set forth below. The Court finds that Plaintiff's privacy interests in her medical and mental health records are such that production of her medical mental records should be limited to those medical and mental health records actually put at issue by Plaintiff's operative Complaint in this action. As a preliminary ...

Excerpt: ... suffered. (See, e.g., CACI No. 400.) Plaintiff has not presented any evidence of the amount of damages, if any, he has suffered as a result of the accident. (See Plaintiff's Separate Statement and the evidence submitted in support.) Plaintiff's failure to present any evidence on a necessary element of his cause of action for negligence precludes the Court from granting his motion for summary judgment. (See Code of Civil Procedure section 437c(p)...

Excerpt: ...s; (3) requests for admissions propounded on the SLC; and (4) depositions of SLC members Matt Niehaus and Spenser Wells, and thee Art.com officers or directors (Dan Mariott, David Quinlivan, and Michael Hogan). When, in a corporate derivative lawsuit, the corporation's SLC files a motion to dismiss the claims (or analogously, a motion for summary judgment), the court applies a two-step test to the motion. (See, e.g., Zapata Corporation v. Maldona...

Excerpt: ...cole Rodriguez ("Deponent") with the Motion papers, as required by CCP §§ 2025.480(c) and 2023.030 and CRC Rule 3.1346. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, THE HEARING WILL BE CONDUCTED ON WEDNESDAY, JANUARY 27, 2020 at 3:00 p.m. in Dept. 19. Moving party has already requested a hearing. The requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court...

Excerpt: ...motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (CCP § 425.16(b)(1).) An "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding...

Excerpt: ...plaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing." Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645, states that the court should read the 60 day limit in light of the "purpose of reso...

Excerpt: ...nserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defens...

Excerpt: ...ved by the violative employment policies. AHS argues, in demurrer, that Plaintiff may not recover civil penalties from it because, as a public agency, it is not a "person" subject to suit under PAGA. AHS also argues that it is subject to the underlying Labor Code provisions Plaintiff seeks to enforce for the second through eighth causes of action. Plaintiff opposes in part. In her opposition, Plaintiff stated that she "voluntarily dismisses witho...

Excerpt: ... of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (CCP § 36(e).) MOTION FOR PREFERENCE Plaintiff...

Excerpt: ...class certification. The Court denied class treatment because the Plaintiffs' motion argued that the Court should certify a class to litigate issues in support of a theory of liability that it had already held deficient on demurrer. The Court's order was without prejudice to a later motion "to certify issues that would support a finding of liability under the operative complaint." On November 13, 2020, Plaintiffs filed a notice of appeal seeking ...

Excerpt: ...o person in trustee capacity and in individual capacity]; Benasra v. Marciano (2001) 92 Cal. App. 4th 987 [person signed agreement as a corporate officer and not in his individual capacity]; Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1731 [representing partnership is not representing partners individually]; Rule Prof Conduct 1.13 [organization as client].) The issue is complicated because a trust is a set of responsibiliti...

Excerpt: ...es 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 reading of the law. (C.C.P. § 425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [ "[A]ny SLAPP defendant who brings a successful motion ...

Excerpt: ... 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 necessary to investigate and rebut Metalclad's defense of comparative fault. Plaintiffs' opposition to other par...

Excerpt: ...t will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. LEGAL STANDARDS The complaint must include a statement of the facts constituting the cause of action, "in ordinary and concise language." (C.C.P. 425.10(a)(1).) These are commonly referred to as "ultimate facts." (Doe v. City of Los Angeles (2007) 42 C4th 531, 550.) "Ultimate facts" are those that raise the issues on which the right to recove...

Excerpt: ...y Gloves answered on 7/30/20. Espinoza v. Midwest Quality Gloves, HG20064308. On 6/1/20, Espinoza filed this alleging exposure to CrVI in leather gloves. The parties settled the claims. On 8/12/20, the court entered judgment. On 12/10/20 (after entry of judgment in Espinoza), CEH filed a motion to consolidate the cases. The essence of the motion is that Espinoza and Midwest both failed to file a notice of related cases under CRC 3.300, that all P...

Excerpt: ...he 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 matters of which judicial notice ha...

Excerpt: ...demnity; 2) contribution; 3) declaratory relief; and 4) express indemnity. On February 26, 2020, Plaintiff Jason Ryan Kelly ("Plaintiff") settled his claims against all named Defendants in this matter. In the order of 9/18/20, the court found that each defendant agreed to bear their own costs and fees, in exchange for plaintiff's offer to dismiss his claims against them with prejudice. Defendants Sharifi, Lam, H&H Courier and East Bay Courier eac...

Excerpt: ... up to $15,000, a service award of $5,000 for each class representative, and settlement administration costs of up to $7,500, and a net PAGA payment of 1,250. After these expenses of approximately $145,400, the class would get $204,600. The average payout per class members would be $2,045. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analysis as ...

Excerpt: ...0, a service award of $5,000 for the class representative, a net PAGA payment of $18,750, and settlement administration costs of up to $6,000. After these expenses of approximately $154,750, the class would get $145,250. The average payout per class members would be $410. 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...

Excerpt: ...n 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. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of per...

Excerpt: ... answer asserting arbitration as an affirmative defense. Starting 6/12/20, Del Taco's counsel began requesting that Ramirez submit his claims to individual arbitration. ORDER The Motion of defendant Del Taco to compel plaintiff Ramirez to arbitrate claims is DENIED. "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence ...." On a motion to compel arbitration, the "trial cou...

Excerpt: ...vice of process" for lack of specific jurisdiction, "the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction." (Snowney v. Harrah's Entm't, Inc. (2005) 35 Cal. 4th 1054, 1062.) "If the plaintiff meets this initial burden, then the defendant has the burden of demonstrating 'that the exercise of jurisdiction would be unreasonable.'" (Id.) "When a nonresident defendant challenges personal jurisdiction the ...

Excerpt: ... in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or ...

Excerpt: ...(ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "The grounds for [the] motion . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 438(d).) A defendant may only make this motion if "the defendant has already filed his or her answer to the complaint and the time for the defend...

Excerpt: ...llation of Written Instrument. The Third Cause of Action is for Financial Elder Abuse. The Fourth Cause of Action is for Fraud by Concealment. The Fifth Cause of Action is to Quiet Title. The Sixth Cause of Action is for Fraud by Intentional Misrepresentation. The Court agrees with Cross-Defendant's contention that under the "primary right" theory of code pleading, the primary right that Cross-Defendant allegedly infringed is the right to be free...

Excerpt: ...fearn 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 matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against...

Excerpt: ...mposes a heightened duty of care on a common carrier, but only while passengers are in transit "and until they have safety departed the carrier's vehicle." (See McGettigan v. Bay Area Rapid Transit District (1997) 57 Cal.App.4th 1011, 1017.) Here, Plaintiffs allege that Plaintiff Alanah Alesanah was stabbed in the arm by a "disruptive" homeless man after disembarking from a BART train at the Coliseum station. BART is not liable under Civil Code �...

Excerpt: ... took off the safety sleeve and resumed work, at which point he was injured by a metal strip that scratched his wrist. Defendant's demurrer to Plaintiff's First Cause of Action for "Intentional Bodily Injury" is SUSTAINED, WITHOUT LEAVE TO AMEND. The First Cause of Action does not allege that Defendant engaged in any intentional conduct that caused Plaintiff to suffer a bodily injury. Rather, the First Cause of Action alleges that Plaintiff was i...

Excerpt: ...ufficient 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 alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint ...

Excerpt: ...iff alleges that the pending nonjudicial foreclosure is improper because he repaid the secured loan "years ago", as was confirmed by a BNY executive in early 2016. (See Complaint, paragraph 31.) This case is the seventh action Plaintiff has filed since 2009 concerning title to the subject real property. The Court determines that Plaintiff's claims in this seventh action are barred by res judicata, based on the resolution of Alameda County Superio...

Excerpt: ...roversy and that a party thereto 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 f...

Excerpt: ... OTO filed an appeal from the Labor Commissioner's order, decision, and award ("ODA") dated 8/25/15. Following various appellate proceedings, on 8/29/19, the California Supreme Court in the Arbitration Case found the superior court had set vacated the ODA in error and remanded the case back to the trial court. (OTO, L.L.C. v. Kho (2010) 8 Cal.5th 111, 138-141.) APPEALS FROM LABOR CODE 98 PROCEEDINGS A party that is not satisfied with the result o...

Excerpt: ...either of the attorney declarations purportedly authenticating those deposition transcripts was made under penalty of perjury. Therefore, neither attorney declaration complied with the requirements of Code of Civil Procedure section 2015.5, and the deposition excerpts were inadmissible. The Court does not find that the failure by Plaintiffs' counsel to prepare declarations that complied with the legal requirements of Code of Civil Procedure secti...

Excerpt: ...he month-to-month lease on June 1, 2014. Defendant Jordan purchased the property in 2016. Plaintiffs allege in their Complaint that Defendant has not complied with the myriad laws requiring her to maintain the premises in a safe and habitable condition since 2016. Plaintiff describes the problems with their unit and the common areas in paragraphs 12 and 13 of the Complaint. Plaintiffs allege that Defendant Jordan has known about the conditions fo...

Excerpt: ...d opposition brief the separate statements of each party, and the authorities submitted by counsel, as well as counsel's oral argument, the Court hereby orders that Brightouse's motion for summary judgment against Plaintiff is DENIED because triable issues of fact remain on at least some of the causes of action stated in the Complaint. Summary adjudication is DENIED as to Plaintiff's first cause of action for breach of contract, on the ground the...

Excerpt: ... pursuant to Code of Civil Procedure § 1094.5, to reverse the July 14, 2020 decision by the Regents' Committee on Privilege & Tenure to deny Petitioner's grievance of his involuntary paid leave pending the investigation. Administrative mandate pursuant to § 1094.5 is available only if the challenged decision resulted from a proceeding in which (1) a hearing is required to be given, (2) evidence is required to be taken, and (3) discretion in the...

Excerpt: ... 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 matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demur...

Excerpt: ...all file and serve an amended complaint no later than twenty-one (21) days from the date of this Order. STANDARD 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 prope...

Excerpt: ...owed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Cal. Civ. Code § 1794.) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover c...

Excerpt: ...entative 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. Plaintiffs' First Amended Complaint alleges claims for violations of the Consumers Legal Remedie...

Excerpt: ... Kaiser's San Leandro facility at 10:57 a.m.; he was admitted to the emergency room at 11:06 a.m.; he was first seen by a nurse at 11:29 a.m.; and he was first seen by a doctor at 12:04 p.m. (i.e., 67 minutes after he first arrived at the Kaiser facility.) Plaintiffs allege Mr. Arcamone was thereafter given various medical tests later that day, but they were not given or reviewed as promptly as Plaintiffs considered necessary, resulting in perman...

Excerpt: ...e or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, 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 ...

Excerpt: ...atewide policy throughout California, knowingly and intentionally failed to provide "all working employees with suitable seats when the nature of the work reasonably permits the use of seats." (First Am. Compl. ¶ 9.) Plaintiff's Special Interrogatories seek information regarding the total number of potentially aggrieved employees in California as well as Citistaff's policies in regards to providing suitable seating to California employees. Plain...

Excerpt: ...(2).) "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." (CCP § 410.30(a).) MOTION TO DISMISS Plaintiff Robert Todd Smathers ("Plaintiff"), a California resident, brought this action against Defendant on September 30, 2020, alleging claim...

Excerpt: ... a motion to transfer venue, "[t]he moving party must overcome the presumption that the plaintiff has selected the proper venue." (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) It is a defendant's "burden to demonstrate that the plaintiff'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 ...

Excerpt: ... THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, January 19, 2021, the 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...

Excerpt: ...final time this motion will be continued. Plaintiff shall file and serve a substantive opposition to this motion by January 6, 2021, and the City of Berkeley shall file and serve a reply by January 15, 2020." Plaintiff has not filed a substantive opposition to this motion. The Court construes Plaintiff's failure to file any substantive opposition to this motion as conceding the validity of the arguments and evidence presented therein and abandoni...

Excerpt: ...ause of action has no merit, that there is no affirmative defense to the cause of action, 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 aff...

Excerpt: ... vehicle had a warranty. The vehicle had a variety of defects, including with the Powernet electrical architecture. Defendant FCA was aware of some of the defense but failed to disclose them. The Complaint asserts claims (1) under the Song-Beverly Act (Civil Code 1793.2(D)); (2) under the Song-Beverly Act (Civil Code 1793.2(B)); (3) under the Song-Beverly Act (Civil Code 1793.2(A)(3)); (4) for breach of written warranty; (5) for implied warranty ...

Excerpt: ...a protective order." (CCP § 2025.420(a).) "The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (CCP § 2025.420(b).) "This protective order may include, but is not limited to, one or more of the following directions: . . . [t]hat the deposition be taken only on certa...

Excerpt: ...nd (b), which provide: "(a) (1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon...

Excerpt: ...issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of materia...

Excerpt: ..., trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "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 of Civil Procedure ["CCP"] § 437c(c).) When a defendant moves for summary judgmen...

Excerpt: ...tion based on both the purchase contract and the construction contract. Esau did not waive the contract right to seek arbitration under either contract. Plaintiff filed this case on 7/24/20 and Esau filed the motion to compel arbitration on 12/21/20. This was reasonably prompt. The motion under the purchase contract is GRANTED. Sharma and Esau were parties to the contract. The contract at para 22 has an arbitration clause. The clause has the mand...

Excerpt: ...f filed its Complaint for Breach of Contract, Quantum Meruit, Common Counts, and Quantum Valebant on July 27, 2020. Plaintiff alleges that Defendants breached the parties' contract for the construction of a Linear Accelerator Concrete Vault for Defendants' Oncology Center. Plaintiff prays for an award of damages against Defendants under contract and quasi-contract theories in the sum of $549,688.61. Plaintiff states that it incurred reasonable ex...

Excerpt: ... to substitute Loranie Francis, a personal representative for the Estate of Mary Virgis Thomason given the death of Ms. Thomason. (See Lazar v Estate of Lazar (1962) 208 Cal.App.2d 554, 561.) The court on its own motion take judicial notice of the orders and determination of Ms. Francis as the executor and personal representative for Mary Virgis Thomason in probate action: The Estate of Mary Virgis Thomason, Alameda County Superior Court Case No....

Excerpt: ...ourt clerk entered the default of all three defendants. Defendants move to set aside the defaults pursuant to CCP §473(b). Defendant Moheb acknowledges service, but argues defendants' failure to respond was excusable, because Moheb retained David Wiseblood, after he was served, to contact Homestreet and negotiate a settlement, believing he was a licensed attorney. (Moheb Decl., par.3-4.) The evidence shows, however, that Moheb retained Wiseblood...

Excerpt: ... by a preponderance of evidence." (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 221-222.) A defendant's "minimum contacts" with California can establish the Court's personal jurisdiction over the defendant in two ways: generally (i.e., as to all claims and causes of action) or specifically (i.e., as to causes of action related to the contacts themselves). (See Bristol-Meyers Squibb Co. v. Superior Court of Cali...

Excerpt: ...amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit." (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047, citing Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Plaintiff has demonstrated that she wishes to add new causes of action and defendants based on new information gathered during discovery. (Declaration of Rosann Torres at ¶¶ 2-5.) It is unclear to the court whether Defend...