Excerpt: ...opposition to this motion to compel its deposition. On October 17, 2019, Romesh Inc. did file a declaration in opposition to a separate pending motion to compel, but that declaration did not specifically address the deposition at issue here. (See Dec. C. Brose in Opp. to Motion to Compel Further Resp. to Doc. Prod., filed 10/17/2019 ["Dec. C. Brose"].) Accordingly, in the absence of any information to the contrary, the Court presumes Romesh Inc.'...

Excerpt: ...legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.'" (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22, citing Wilkerson v. Sullivan, supra, 99 Cal.App.4th 443, 446.) Section 425.16 is interpreted to allow awards of only such fees as the court deems reasonable. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362; Dove Audio, Inc....

Excerpt: ...Plaintiff because he complained about the presence of asbestos in cabins at City's Echo Lake camp. Plaintiff alleges that he was a protected whistleblower under the Fair Employment and Housing Act, Labor Code section 1102.5 et seq., and Government Code section 8547.1, et seq. Although Plaintiff alleges that City's conduct violated statutes that protect whistleblowers, and he has included in the First Amended Complaint separate causes of action al...

Excerpt: ...ation Building, 1221 Oak Street, Oakland in light of power outage preventing all parties from obtaining timely tentative ruling. The court's tentative ruling is as follows: Cross-Defendant American Security Insurance Company's ("ASIC") Demurrer to the Fourth Amended Cross-Complaint of Defendant John Clifton Elstead ("Elstead") is SUSTAINED WITH LEAVE TO AMEND IN PART AND OVERRULED IN PART. Elstead shall file an amended cross-complaint within 30 d...

Excerpt: ...istributes and imports Chrysler, Dodge and Jeep vehicles in California. Plaintiff alleged that the vehicle had a 3-year/36,000-mile basic warranty, and a 5- year/100,000-mile powertrain warranty. Plaintiff alleges that also purchased a Mopar Vehicle Protection Warranty from FCS that provided for a rental vehicle if warranted repairs "take overnight." Plaintiff alleges that the vehicle also came with an implied warranty of merchantability. Plainti...

Excerpt: ... Tejon Real Estate, LLC v. Los Angeles (2014) 223 Cal.App.4th 149, 156 [holding that a demurrer is properly sustained where a plaintiff "fail[s] to adequately plead exhaustion of administrative remedies."].) Here, Plaintiff admits the administrative process is ongoing in his FAC. (See FAC, para. 88 [discussing the "pending administrative proceedings"].) Administrative exhaustion is jurisdictional. (Campbell v. Regents (2005) 35 Cal. 4th 311, 321....

Excerpt: ...via Bank, N.A. as Trustee (Bayview) ("Wachovia") and Cross-Defendant JPMorgan Chase Bank, N.A.'s ("Chase") (collectively, "Cross-Defendants") Demurrer to the Fourth Amended Cross- Complaint of Defendant John Clifton Elstead ("Elstead") is SUSTAINED WITH LEAVE TO AMEND IN PART AND OVERRULED IN PART. Elstead shall file an amended cross- complaint within 30 days of this Order. Cross-Defendants' Motion to Strike Portions of the Fourth Amended Cross C...

Excerpt: ...ed. Plaintiff HealthFlex Home Health Services ("Plaintiff") alleges that Defendant falsely advertises that it is accredited by the ACHC, when in fact its accreditation has been terminated for failure to meet Medicare requirements. Plaintiff alleges that Defendant has gained an unfair competitive advantage by failing to hire a Director of Patient Care Services, in order to lower its expenses, which has resulted in risk to patients from the lack of...

Excerpt: ...endant's counsel 38.8 megabytes of digital images containing over 148 files of business records responsive to the request for production of documents at issue in this motion. (See Dec. C. Brose in Opp. to Motion to Compel Further Resp. to Doc. Prod., filed 10/17/2019 ["Dec. C. Brose"], para. 1, Exh. C.) This production was verified and was in addition to 1,100 pages of documents earlier served in this action. (Id. at para. 6.) Puzzlingly, Defenda...

Excerpt: ... the required discovery responses and documents by November 22, 2019, or the responses are incomplete or otherwise defective, the court will impose evidentiary sanctions, the scope of which will be determined at a compliance hearing on December 13, 2019 at 9:00 a.m. in Department 18. At which time the court also consider the plaintiff's request for monetary sanctions. The trial and pretrial dates will be continued to March 30 2020 and March 10, 2...

Excerpt: ...its pleadings once without leave of the court. Plaintiffs previously amended their pleadings once without leave of court, so leave to amend was required before the Second Amended Complaint was filed. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 574.). However, the court has considered the new allegations in the proposed Second Amended Complaint in determining whether leave to amend should be granted. The demurrer to the First Cause of Action ...

Excerpt: ... 2016. The operative pleading is the Fourth Amended Complaint ("FAC") filed on October 17, 2018. The FAC pleads three causes of action. Defendant is named only under the first cause of action for professional negligence and the second cause of action for wrongful death. The declaration of Thomas Hargrave, M.D. is sufficient to satisfy Defendant's initial burden of production. Dr. Hargrave's declaration establishes that Dr. Hyder met the applicabl...

Excerpt: ... of action alleges that within the last four years Defendant became indebted to Plaintiff on an open book account for money due, and count 2 of the second cause of action alleges that within the last four years Defendant became indebted to Plaintiff because an account was stated in writing between the parties in which it was agreed that Defendant was indebted to Plaintiff. (Complaint, para. CC-1(a)(1), (2).) In the instant motion, Plaintiff intro...

Excerpt: ...r 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 § 437c(f)(1).) "A motion for summary adjudication sh...

Excerpt: ...g, and that date must be considered firm until continued. (Cal. R. Ct. 3.1332(a).) Because the Court had granted trial preference, the Court has discretion to continue the trial date by up to 15 days on showing of good cause. (CCP § 36(f).) The moving defendants seek a continuance on the grounds of "excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts" and because of "significant, unanti...

Excerpt: ...ht to trial within five years after the action is commenced against the defendant. ( CCP 583.310) TThe purpose of the rule requiring that plaintiffs act diligently to bring actions to trial within five years is to promote the trial of cases before evidence is lost or destroyed, or the memory of witnesses becomes dimmed, and to protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite...

Excerpt: ....) The demurrer to "Count Three - Dangerous Condition of Public Property" (paragraph Prem.L-4) is OVERRULED. Plaintiff adequately alleges facts supporting a claim that the intersection where the accident occurred constituted a dangerous condition of public property, i.e., a physical characteristic of the intersection created a substantial risk of injury to those traveling through the intersection, even when exercising due care and acting in a rea...

Excerpt: ... Act, Penal Code sections 11225 et seq. (See Plaintiffs' Separate Statement Facts ("SSF") Nos. 25-78.) However, the Court cannot grant summary adjudication as to liability only, where issues pertaining the calculation of damages or the other relief or remedies as to which Plaintiffs may be entitled remain to be determined. (See, e.g., Department of Industrial Relations v. UI Video Stores Inc. (1997) 55 Cal.App.4th 1084, 1097.) In Plaintiffs' Seco...

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: ...interest to all five plaintiffs. Pursuant to Labor Code section 1194, Plaintiffs request a total of $70,890 in reasonable fees and $2,319.25 in costs. The court may properly award fees to employees pursuant to Labor Code section 1194 in a Labor Commissioner appeal brought by the employees pursuant to section 98.2. (Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363, 1379-1394.) Plaintiffs request fees for a total of 148.8 h...

Excerpt: ...Estate Solutions, LLC are engaged in the business of acquiring properties and then selling them after performing some improvements and remedial work. Defendants Laura Blair and Carlos Plazola are the principals of Defendants. Plaintiff alleges in the Second Amended Complaint that the entity Defendants are all previous owners of the subject property located at 3000 Sheffield Avenue, in Oakland. Plaintiff and Defendants closed on the transaction ($...

Excerpt: ...ing from the original date due to the absence of evidence presented by the parties. See City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1264-1265 (court must have some evidence to support its decision on a motion for determination of good faith settlement). The Court appreciates the supplemental memoranda filed by Defendants Gerlyn Neau and George Neau and the County of Alameda. The parties' supplemental papers attached the re...

Excerpt: ...ion for Intentional Infliction of Emotional Distress. Plaintiff alleges facts supporting this claim that, if true, demonstrate that BMC engaged in extreme and outrageous conduct. That conduct includes, inter alia, billing Plaintiff for services never authorized by her or performed by BMC, attempting to seize Plaintiff's boat via a mechanic's lien for services never authorized or performed, and damaging the boat in an amount exceeding $35,000 whil...

Excerpt: ... Complaint filed on August 28, 2019. Plaintiff purchased her property in the Oakland hills in 2015. Defendant Yu purchased the property known commonly as 80 Roble Road and 90 Roble Road in December 2015 or January 2016. The parties have not indicated that any structures existed on the Yu property at the time that he acquired it. Defendant Yu and his business partner Balbir Singh intend to construct single-family homes on the property for sale. Pl...

Excerpt: ...ct with Johnson or performing work under that contract. Johnson contends that, although failure to comply with § 413 does not make the parties' contract "illegal" it does make the contract unenforceable. Johnson cites no language in § 413, and no published case, that supports her position, although she does cite a 19 year old case filed in San Diego Superior Court in which a judge reached that conclusion. In the absence of any directly applicab...