Excerpt: ...ant's "new" evidence, even assuming that Defendant could not have obtained it earlier, is insufficient to create triable issues of material fact regarding any of Defendant's Sixth, Seventh, Ninth and Twentieth Affirmative Defendants. LEGAL STANDARDS "When an application for an order has been made to a judge, or to a court, and . . . granted . . . any party affected by the order may, within 10 days after service upon the party of written notice of...

Excerpt: ...t." (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 rule in testing a pleading...

Excerpt: ...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 defense; or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (CCP § 431.10(b).) MOTION TO STRIKE On December 20, ...

Excerpt: ...t your contention that the putative class is manageable." Special interrogatory 51 seeks "all facts that describe your trial plan." TRIAL PLAN The discovery concerns plaintiffs' trial plan. The court encourages plaintiffs to present a trial plan at class certification because it assists the court in determining whether a class trial can be manageable. (Duran v. US Bank (2014) 59 Cal.4th 1, 27; McCleery v. Allstate Ins. Co. (2019) 37 Cal.App.5th 4...

Excerpt: ...self. Plaintiff's First Amended Complaint does not mention any "utility metal cover" and does not allege that is what caused her to trip and fall. To the extent that Plaintiff may contend her accident was caused when she tripped on a "utility metal cover", rather than on the surface of the sidewalk itself, (1) Plaintiff cannot defeat summary judgment based on facts falling outside the scope of the claims asserted in the operative pleading (see, e...

Excerpt: ...tions to Mr. West. The MSA with respect to Plaintiffs' Fourth Cause of Action for Fraudulent Non- Disclosure and claim for punitive damages is GRANTED. Plaintiffs' written discovery responses are "factually devoid," and in Opposition to the MSA Plaintiffs present insufficient affirmative evidence to create triable issues of material fact regarding both Plaintiffs' Fourth Causes of Action and their punitive damages claim. The Court tentatively DEN...

Excerpt: ....) On 12/20/19, plaintiff sent a letter to proposed defendant CTS asserting claims and proposing settlement. On 1/28/20, plaintiff filed this case. On 3/2/20, defendant SMP filed an answer and also a cross complaint against CTS and SFA. On 7/9/20, proposed defendant CTS sent a letter to plaintiff seeking contractual indemnification under the contact between plaintiff and CTS. On 7/22/20, plaintiff sent a letter to proposed defendant CTS seeking c...

Excerpt: ... related claims. There are approximately 41 members of the class. The case preliminarily settled for a total of $58,000. The settlement agreement states there will be attorneys' fees of up to $14,500, costs of up to $5,800, a service award of $2,500 for the class representative. Defendant will pay the costs of settlement administration. (Proposed order at 3:16-18) After these expenses, the class would get $37,000. The average payout per class mem...

Excerpt: ...t attach a copy of the Settlement Agreement referenced in paragraph 38 of the First Amended Complaint. Plaintiff should have attached the Settlement Agreement because its provisions are the basis of Plaintiff's claims against Builders Protection Group, LLC. The Court understands that the Homeowners Association ("HOA") of Sierra at Jack London Square ("the HOA"), Richard Avelar & Associates Reconstruction Services, Inc. ("Richard Avelar & Associat...

Excerpt: ... First Amended Complaint, paragraphs 8-9.) Plaintiff alleges that the Preliminary Title Report failed to disclose that there was a lien on the subject property, and as a result Plaintiff's attempt to subsequently resell the subject property to an unidentified buyer fell through. (See First Amended Complaint, paragraph 11.) Although Plaintiff was eventually able to resell the subject property to a different buyer, the sale price was less that Plai...

Excerpt: ... "[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 is an abuse of discretion to deny leave to ame...

Excerpt: ...(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 is an abuse of discretion to deny leave t...

Excerpt: ...s motion for summary judgment. The Court did not read or consider the two state trial court orders cited in SDG's objection because those orders are not binding on this Court. SDG was the developer and general contractor of a residential subdivision near (but not in) the City of Lafayette. GTS was a trucking service hired by the project's subcontractor for excavation services to deliver gravel and other materials to the construction site. (See SD...

Excerpt: ...t made a prima facie showing that Plaintiff had no noticeable damage as of March 29, 2019, after her last visit to Highland Hospital on February 11, 2019. The Court's finding was based on the testimony of Defendant's expert, Christopher Petrush, D.D.S. There is no apparent inconsistency. The Court's order leaves open the possibility that Plaintiff sustained damage to her teeth after March 29, 2019. The Court acknowledges that Plaintiff submitted ...

Excerpt: ... 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 . . . , or that one o...

Excerpt: ...e 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 respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controvers...

Excerpt: ...ley v. Fosca Oil Co., (1963) 216 Cal.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"].) The relevant criteria for the Court to consider vary with the reason for the stay and the scope of the stay sought. (Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1534 (stay based on forum non conveniens); Morris v. AGFA Corp. (2006) 14...

Excerpt: ...255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by the defend...

Excerpt: ...ed for employment and was employed as a Service Apprentice and Service Technician. (Estrada Dec., para 7.) Plaintiff provided on-site property and groundskeeping services at SoMa Square. (Estrada Dec., para 9, Exh B.) Plaintiff asserts Labor Code claims on behalf of himself and a putative class. CONTRACT FORMATION The Court finds contract formation. On 7/12/19, Plaintiff electronically accepted employment through an offer that disclosed the arbit...

Excerpt: ...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 persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to m...

Excerpt: ...ates 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, and treats the demurrer as admitting all material fac...

Excerpt: ... to sign a severance agreement that included a waiver of claims. (Cpt, para 12-13, Exh A.) This is a demurrer, so the court assumes the allegations of the complaint to be true. The court considers the settlement agreement that is attached to the complaint. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 ["We also consider the complaint's exhibits"].) The complaint asserts claims 1, 2, 4, 5, and 6 relating to the termination of...

Excerpt: ...e amount of $825 no later than thirty (30) days after the date on which Defendants serve and file a Notice of Entry of this Order. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, November 6, 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...

Excerpt: ...nd shall include all of the following: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached[;] (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best k...

Excerpt: ... attorneys' fees and cost of up to $91,666 (33%), costs of up to $12,500, a service award of $5,000 for 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. The average payout per class members would be $1,014. The Order of 10/2/20 stated the court was concerned about the timing of funding and distributing the set...

Excerpt: ...application for the policy and the delivery of the policy the decedent had been hospitalized, diagnosed with obstructive sleep apnea, and prescribed a nightly BiPAP machine, but that decedent did not disclose that information before the policy took effect. Defendant Brighthouse served discovery. The court held an IDC, but the parties were not able to resolve their disputes. SPECIAL INTERROGATORIES Defendant Brighthouse served at least 70 special ...

Excerpt: ...med a tubal ligation on her after the delivery of her baby, even though she allegedly made clear that he was to do so only if the baby was determined to be healthy. The allegations considered by the court of appeal in Grieves were suggestive of negligence at most. The court held that the trial court erred, however, because it should have given the plaintiff an opportunity to cure the defects cited in the demurrer by alleging that the doctor was l...

Excerpt: ...nsive pleading. While Defendants cite in their memorandum of points and authorities In re Marriage of Smith (1982) 135 Cal.App.3d 543, 545 for the proposition that their appearance in the present motion does not constitute a general appearance, their reliance on that authority is misplaced, as the case involved a situation where Defendant filed both a motion to quash, and a motion to set aside default. Had Defendants filed a motion to quash in co...

Excerpt: ...ff can establish some ground to revoke or invalidate it. Plaintiff contends the arbitration agreement is invalid on the basis of unconscionability. The Court determines Plaintiff has not demonstrated unconscionability that would support invalidating the arbitration agreement. In order to invalidate the arbitration agreement on the grounds of unconscionability, Plaintiff must demonstrate that the agreement is both procedurally and substantively un...

Excerpt: ...on, 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 either owed or did not owe a duty to the plaintiff or plaintiffs."...

Excerpt: ...tatement Facts ("SSF"), Issue 1, Nos. 1-3 and the evidence cited in support.) Delgado was injured when RJP employee Wilfredo Serrano-Juarez ("Juarez") dropped a wood plank that fell down an elevator shaft and hit Delgado. (See SSF Issue 2, Nos. 7-8 and the evidence cited in support. Although Plaintiffs purport to dispute SSF Nos. 7-8, they cite no admissible evidence that creates any dispute.) Delgado sues LHC for premises liability and negligenc...

Excerpt: ...n 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 Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who ...

Excerpt: ...the original complaint with leave to amend, identifying various ways that the complaint was not adequate. The First Amended Complaint filed 8/25/20 is an amendment or supplement to the Original Complaint rather than a comprehensive document. In addition, the First Amended Complaint as filed and scanned with the court on 8/25/20 has only two (2) pages. The document does not cover all causes of action, is not signed, and references exhibits but doe...

Excerpt: ...inst H&H, (3) NorCal was to pay Lutz $30,000 in installments, and (4) if NorCal defaulted, then Lutz could seek judgment against NorCal. The 1AC asserts causes of action against Hancock and Handeland ("H&H") for (2) declaratory relief, (4) fraudulent inducement to contract, (5) rescission of contact, and (6) unjust enrichment. The 1AC alleges at para 4(A) that Lutz Construction Services assigned its rights under the agreement to plaintiff Quigley...

Excerpt: ...e the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. § 1281.2.) AGREEMENT TO ARBITRATE Plaintiff disputes that there was an agreement to arbitrate. Plaintiff maintains that Plaintiff herself did not consent to arbitration since the arbitration agreement was signed by Karen Cordeiro and not Plaintiff. ...

Excerpt: ...o the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." (CCP § 1008(a).) "The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." (Id.) "A party filing a renewed application must, among other things, submit an ...

Excerpt: ...ng's Complaint and Plaintiff's Application for a Writ of Attachment against Defendant. Plaintiff King sold his business to Defendant in 2019 for the total sum of $35,000,000. Defendant paid $25,000,000 to King and gave him a promissory note for the balance. The terms and conditions of the transaction are set forth in the Amended and Restated Asset Purchase Agreement, dated on or about July 12, 2019. Plaintiff filed his Complaint against Defendant...

Excerpt: ...low at least seven calendar days before the continued 12/9/2020 hearing. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, November 3, 2020 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, ...

Excerpt: ...ments identified herein with the appropriate designations ordered below on Plaintiffs no later than Monday, November 16, 2020. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, 10/20/2020, 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, p...

Excerpt: ... questions and/or stimuli and Plaintiff's responses for any examination or testing Dr. Perrillo performed on Plaintiff, so that Defendant may have a full and fair opportunity to depose Dr. Perrillo in advance of trial regarding his anticipated expert testimony. The Court instructs Defendant to be prepared at the 11/4/2020 hearing to advise the Court exactly what "raw" examination and/or testing materials it needs to properly depose Dr. Perrillo a...

Excerpt: ... 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 . . . , or that one o...

Excerpt: ... the LWDA under PAGA is severed. The court DENIES the request to stay the claim on behalf of the LWDA. Plaintiff asserts claim on behalf of himself, a putative class, and the LWDA. Defendant NetApp argues that Plaintiff's claims arise under the "FY19 Incentive Compensation Plan" (the "Plan") and that Plaintiff must pursue his claims in individual arbitration. CONTRACT FORMATION The Court finds contract formation. On 9/3/18, Plaintiff electronical...

Excerpt: ...onetary sanctions to Plaintiff in the amount of $1,560.00 for Counsel's failure to meet and confer in good faith regarding the issues in dispute herein, pursuant to CCP § 2023.010(i), payable no later than 30 days after Plaintiff serves Defendant with a Notice of Entry of the Final Order on this Motion. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, October 27, 2020, the contesting party must email dept.1...

Excerpt: ...etion, 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 defense; (2) ...

Excerpt: ...davits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts. (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657- 658.) Once facts showing minimum contacts with the forum state are established, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) When there ar...

Excerpt: ...demurrer is OVERRULED. The motion to strike is GRANTED WITH LEAVE TO AMEND. LEGAL STANDARDS 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 ...

Excerpt: ...andard 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. § 452.) The court give...

Excerpt: ...inst H&H, (3) NorCal was to pay Lutz $30,000 in installments, and (4) if NorCal defaulted, then Lutz could seek judgment against NorCal. The 1AC asserts causes of action against Hancock and Handeland ("H&H") for (2) declaratory relief, (4) fraudulent inducement to contract, (5) rescission of contact, and (6) unjust enrichment. The 1AC alleges at para 4(A) that Lutz Construction Services assigned its rights under the agreement to plaintiff Quigley...

Excerpt: ...es and various Labor Code violations primarily regarding alleged unpaid meal and rest periods. The case settled for $5,000,000, pending final approval. The size of the class is 447. (Moving Lee Dec. ¶ 8.) The Settlement Agreement states that attorneys' fees will be up to 40% of the settlement amount, or $2,000,000, plus costs of suit in an amount not to exceed $350,000. The Settlement Agreement calls for $20,000 class service awards to each of P...

Excerpt: ...lendar days before the continued 12/7/2020 hearing. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Friday, October 30, 2020 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 ...

Excerpt: ... punitive damages award. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday Friday, October 30, 2020 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 ...

Excerpt: ...es against Enterprise. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, October 30, 2020 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...

Excerpt: ...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. LEGAL STANDARDS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION MOTIONS "A party may move for summary judgment in an action or pr...

Excerpt: ...ontest 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. LEGAL STANDARDS FOR 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...

Excerpt: ...nal jurisdiction over Defendant is constitutional. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449, overruled on other grounds by Bristol- Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773, 1781.) Once established, the burden shifts to Defendants to prove that the exercise of jurisdiction would be unreasonable. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 792-794.) The U.S. Supreme Court re...

Excerpt: ...nsporting Leobardo Lopez to the hospital struck another vehicle at or near the intersection of Telegraph Avenue and 45th Street, in Oakland, on August 28, 2017. Ubaldo Lopez, who was riding in the back of the ambulance with his father, also sustained injuries even though he was wearing a seat belt. The evidence before the Court indicates that Plaintiffs retained attorney Brian L. Larsen's firm in September 2017. The evidence before the Court also...

Excerpt: ...s as African American. Plaintiff alleges that African American employees generally are treated worse than employees of other races at Berkeley Unified School District. The operative First Amended Complaint was filed on April 5, 2018. Plaintiff's First Cause of Action against Defendants is for discrimination on the basis of race. Plaintiff's Second Cause of Action against Defendants is for retaliation. Plaintiff alleges that Defendants were not au...

Excerpt: ...negligence on behalf of various Defendants, he was injured. Cross-Complainant Perez asserts that there was a hidden ultra-hazardous condition at the property and that as a result of the incident he was also injured. Perez alleges that various cross-defendants failed to take appropriate precautions to protect Perez from dangerous conditions of the premises, including the risks of electrocution and explosion at the Main Distribution Panel. THE MOTI...

Excerpt: ...n arise from locating a promissory note that is alleged to be related to construction at the property at issue and involve the same general nucleus of facts as the complaint and other consolidated complaints/cross- complaints. The trial court has broad discretion to allow amendments to the pleadings "in furtherance of justice." (C.C.P. § 473(a)(1).) "This discretion should be exercised liberally in favor of amendments, for judicial policy favors...

Excerpt: ...ignored all attempts to meet and confer prior to the filing of the demurrer on July 21, 2020. Counsel for Cross-Complainant was ordered to retain a court reporter to make a record of counsel's meet-and-confer discussions. There is no apparent justification for counsel's failure to comply with the earlier order. Cross-Defendant's demurrer to the entire Cross-Complaint based on its contention that Cross-Complainant is the same individual as Paul Si...

Excerpt: ...waived any habitability claims based on the Stipulation re Dismissal/Judgment entered on March 6, 2019 in Case No. HG19-003601 (attached as Exhibit 1 to Defendants' Request for Judicial Notice.) First, Plaintiff Elijah Wilson was not a party to the Stipulation. Second, in the Stipulation Plaintiff Colette Luckie agreed to "waive claims which are known of and exist at this time as of the signing of this Stipulation." The claims asserted in this la...

Excerpt: ...omplaint." (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 rule in testing a p...

Excerpt: ... be served with all of the following: (1) A copy of the summons and complaint[;] (2) A Notice of Application and Hearing[;] [and] (3) A copy of the application and any affidavit in support thereof." (CCP § 512.030(a).) "If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served und...

Excerpt: ...ire Second Amended Complaint based on lack of standing is SUSTAINED, WITH LEAVE TO AMEND. Pursuant to Welfare and Institutions Code § 15657.3(d), the right to bring this action belongs to the Special Administrator of the Estate of decedent Hortense McClenaghan, whom all parties agree is Duane Leonard. If Mr. Leonard declines to pursue this action, then the other persons described in § 15657.3(d)(1)(A)-(C) have standing to do so. Although Plaint...

Excerpt: ...pid Transit District's ("Defendant") Demurrer to Plaintiffs Rosey Bridgland and Keith Kingon's (collectively, "Plaintiffs") Second Cause of Action in the Second Amended Complaint ("SAC") is SUSTAINED WITH LEAVE TO AMEND. IT IS ORDERED THAT no later than twenty-one (21) days from the date of this Order, Plaintiffs shall file and serve an amended complaint. STANDARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a comp...

Excerpt: ...rer and motion to strike. Plaintiff shall file separate responsive briefs to each of Defendant's motions in all future filings. 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...

Excerpt: ...ed First Amended Complaint is attached to the document filed on 10/9/2020 and the Court does not have a record that the First Amended Complaint has been filed. Therefore, in an abundance of caution the Court issues the following substantive Tentative Ruling on the Demurrer. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, October 20, 2020, the contesting party must email [email protected] and pro...

Excerpt: ...onetary sanctions to Plaintiff in the amount of $1,560.00 for Counsel's failure to meet and confer in good faith regarding the issues in dispute herein, pursuant to CCP § 2023.010(i), payable no later than 30 days after Plaintiff serves Defendant with a Notice of Entry of the Final Order on this Motion. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, October 27, 2020, the contesting party must email dept.1...

Excerpt: ... the clerk's office forthwith so that they become part of the official record for this case. As to Defendants Patrick Sanchez, Ray Rodriguez, Elisa Martinez, Lucia Gutierrez, Bowen Zhang, and Phuong Nguyen, Plaintiff fails to allege any defamatory statements made by any of these individuals. Plaintiff's claim against the District and Defendant Jessica Saavedra (Director of Human Resources for the District) is based on three types of communication...

Excerpt: ... or about July 28, 2020. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, 10/20/2020, 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 wh...

Excerpt: ...led to appear for her properly-noticed deposition. On March 11, 2020 this Court granted defendant's motion to compel Plaintiff's discovery responses and ordered Plaintiff to appear for deposition on May 15, 2020. Plaintiff did not and has not complied with the Court's order, including its order that Plaintiff pay monetary sanctions in the amount of $1300.00. The present motion is unopposed. Accordingly, for the reasons discussed, Defendant's moti...

Excerpt: ...twenty-one (21) days from the date of this Order. 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 respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists," except under certain situations outli...

Excerpt: ... of the intent to contest the tentative order. If any class member wishes to contest any portion of the settlement at the hearing, he or she must email the Court at [email protected] no later than 4:00 p.m. on Tuesday, 10/27/2020 and advise that he or she wishes to contest the settlement remotely. If any class member timely so advises the Court of his or her intent to appear and contest the settlement, the Court will so advise the part...

Excerpt: ... 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 has been t...

Excerpt: ...; 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. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318....

Excerpt: ... class action and PAGA case was initially filed on November 29, 2018, asserting claims that are alleged to reach back to November 2014 under an applicable statute of limitations. The original plaintiff apparently lost interest in the case, so a Second Amended Complaint (SAC) was filed adding a new plaintiff (Gilmore), who, while asserting the same claims, ceased employment with defendant in 2016. (SAC paragraph 41). The original plaintiff filed a...

Excerpt: ...rit or that there is no defense to the action or proceeding." (CCP § 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 ...

Excerpt: ...uested relief. (See C.C.P. § 664.6.) More specifically, Plaintiff demonstrated that the parties executed a written "Settlement Agreement" which provides for the court to retain jurisdiction under Code of Civil Procedure section 664.6 and requires that Defendant to execute three quit claim deeds for real property as part of the settlement. (See the Declaration of Wayne R. Russo at ¶ 3, "Settlement Agreement" attached at Exh. A.) Additionally, th...

Excerpt: ...ant's Motion for Summary Adjudication. On the afternoon of Friday, 10/23/2020, Defendant submitted a portion of the deposition transcript of percipient witness Dennis Russell ("Dennis") in which Dennis' counsel stipulated on the record that Dennis would not be providing product identification testimony regarding Defendant's asbestos- containing products. (See Further Suppl. Yim Dec. Exh. B.) In consideration of this additional evidence, the Court...

Excerpt: ...ies of any communication that any attorney, including Plaintiff's counsel, sent to her regarding the claims set forth in the First Amended Complaint. The Court does not agree with Plaintiff's claim that the records are not relevant to the subject matter of this case. See CCP § 2017.010; and Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546. Furthermore, as Defendant is seeking only communications the preceded the retention of counsel b...

Excerpt: ...ay petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole[;] [and] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may grant a motion for preference that is accompanied by clear and convincing m...

Excerpt: ...ments identified herein with the appropriate designations ordered below on Plaintiffs no later than Monday, November 16, 2020. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, 10/20/2020, 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, p...

Excerpt: ...o the alleged Labor Code violations that are the basis for her First, Second, Third and Ninth Causes of Action. (Brown v. Ralph's Grocery Co. (2018) 28 Cal.App.5th 824, 838.) IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Friday, 10/23/2020, 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 like...

Excerpt: ...rit or that there is no defense to the action or proceeding." (CCP § 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 ...

Excerpt: ...an 4:00 PM on Thursday, October 22, 2020, contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. IF CONTESTED, THE HEARING WILL BE CONDUCTED ON TUESDAY, OCTOBER 27, 2020 at 3:00 p.m. in Dept. 18 via COURTCALL. If not timely contested, and the tentative ruling will become the final order of the Court. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGM...

Excerpt: ...,932 (30%), costs of up to $25,000, a service award of $7,500 for the class representative, a net PAGA payment of $37,50, and settlement administration costs of up to $25,000. After these expenses of approximately $900,000, the class would get $1,909,175. The average payout per class members would be $527. The settlement agreement does not require defendant to change its compensation system or to increase wages. Plaintiffs assert that as a result...

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

Excerpt: ...Procedures (Civil Code § 1798.81(5)(b) is SUSTAINED, WITHOUT LEAVE TO AMEND. Civil Code § 1798.81.5 does not apply to providers of health care like Sutter. (See Civil Code § 1798.81.5(e).) The demurer to the Fourth Cause of Action for Invasion of Privacy is SUSTAINED, WITH LEAVE TO AMEND to allege, if possible, facts demonstrating "public" disclosure of Plaintiff's private facts. (See, e.g., Moreno v. Hartford Sentinel Inc. (2009) 172 Cal.App....

Excerpt: ...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 contains a...

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

Excerpt: ...ioner California Newspaper Partnership, dba The Bay Area News Group and The East Bay Times ("Petitioner") brings the present petition requesting under the California Public Records Act to obtain the names of long-term care facilities, including skilled nursing homes, assisted living facilities, residential care facilities, and other congregant care facilities in Alameda County with COVID-19 cases, and the cumulative number of infections and death...

Excerpt: ...ns 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 rule in te...

Excerpt: ...ense to the complaint." (CCP § 438(c)(1)(A).) A defendant may make such a motion only if "either of the following conditions exist: (i) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint[;] [or] (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 challenge...

Excerpt: ...ntract, they agreed that "any dispute arising out of the performance of this agreement shall be submitted to binding arbitration". All three of Plaintiffs' causes of action asserted in this case (for breach of contract, common counts, and an unspecified fraudulent concealment) arise out of the performance of Plaintiffs' contract with Defendant. The Court rejects Plaintiffs' argument that the petition must be denied for failing to "sufficiently de...

Excerpt: ...so finds that all of plaintiff S.O.S.I.'s ("Plaintiff" or "Tenant")) Causes of Action may be successfully stated even if all references to the 3-Day Notice are properly stricken from the Complaint. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, the hearing on this Motion will be conducted on Wednesday, October 7, 2020 at 3:00 p.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 p.m. on Tuesday, October ...

Excerpt: ...ts Tamin Hamid and Theradome, Inc. ("Defendants") monetary sanctions payable by Plaintiff in the amount of $560. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, October 13, 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, passwor...

Excerpt: ...114, 115, 117 and 118 are GRANTED IN PART and DENIED IN PART as set forth below. Plaintiff's Motion to Compel Documents responsive to Plaintiff's Requests for Production, Set One is GRANTED IN PART, as set forth below. Defendants shall serve verified further responses to Special Interrogatories Nos. 51-53, 55, 68, 69, 74, 81-84, 86-93, 100, 107, 109, 110, 115 and 117 and produce all responsive documents in the possession, custody or control of De...

Excerpt: ... or about July 28, 2020. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, 10/20/2020, 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 wh...

Excerpt: ...2017. The second dispute is a legal malpractice case that Cantor filed for Malki against The Shepard Law Group ("SLG") on January 2, 2018 (i.e., the lead case in this consolidated action.) Court records reflect that Cantor continued to represent Malki in that action until he filed a substitution of attorney on October 12, 2018. Cantor's motion for summary judgment is based on a single legal argument, i.e., that any malpractice claim based on Cant...

Excerpt: ...tled 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 material fact; if he carries his burden of produc...