Excerpt: ...conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct." (CCP § 2023.030(a).) "If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Id.) "The court may impose an issue...

Excerpt: ...t ordered Defendants to retain an attorney and to file an Answer to the Complaint. The Court noted that Defendants could file a motion for judgment on the pleadings after retaining an attorney. The motion is denied for two reasons. First, counsel did not comply with his statutory obligation to make a reasonable and good faith attempt to resolve the issues raised in his motion before its filing. See CCP § 439(a). Counsel proceeded to file the mot...

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: ...on Tuesday, 10/18/2020, 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 which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative...

Excerpt: ...le and serve the proposed Cross-Complaint without the Second Cause of Action for Quiet Title based on prescriptive easement no later than fourteen (14) days from the date of this Order. STANDARD OF LAW "A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint." (CCP § 428.50(a).) "A party shall obtain ...

Excerpt: ...ttached as Exhibit A to the Declaration of Tijana M. Brien filed August 25, 2020 and also attached as Exhibit U to the Declaration of Tijana M. Brien filed July 22, 2020 (hereafter "Exhibit A/U"). The Court finds that Exhibit M contains a list of investors in Adamas, which constitutes confidential financial information protected by both Adamas' and the investors' rights of privacy, which are overriding interests that support restricting public ac...

Excerpt: ...dating back to 2006 when Plaintiff applied for and obtained the initial mortgage for the subject property. First, the court notes that Defendant Wells Fargo ("Defendant") is not requesting Plaintiff's tax returns. Therefore, no documents should be produced that reflect Plaintiff's tax returns or are integral to the tax returns. Additionally, Defendant Wells Fargo represents that Wells Fargo ceased in its attempts to subpoena Franklin Capital Grou...

Excerpt: ...s recorded. (CCP § 405.30.) The Court must order a lis pendens expunged if it finds either (1) that the claimant does not have a real property claim (CCP §§ 405.4, 405.31) or (2) that the claimant has not "established by a preponderance of the evidence the probable validity of the real property claim." (CCP § 405.32.) A real property claim is any cause of action that, if meritorious, would "affect (a) title to, or the right to possession of, ...

Excerpt: ...at AHMC produced an incomplete document production and made improper claims that certain documents were subject to a protective order. Plaintiffs also contend that AHMC served 60 pages of objections to the Deposition Notice that limited the scope of AHMC's investigation, education and resulting production. Plaintiffs contend that AHMC's designee, James Jongkind ("Mr. Jongkind"), made no investigation, did not look for documents, and wasn't educat...

Excerpt: ...d Amended Complaint, or its prior demurrers to the earlier versions of the Complaint. The court had previously overruled Defendant Wells Fargo's prior demurrer to the Second Amended Complaint on the grounds that Defendant did not raise the statute of limitations argument in its prior demurrers, when it could have. The same is true here. (See: Code of Civil Procedure section 430.41 subs. (b) and section 439 subs. (b).) Counsel for Wells Fargo now ...

Excerpt: ...d Cause of Action for Unruh Civil Rights Act Violation (Civ. Code § 51). Plaintiffs shall serve and file an Amended pleading no later than Friday, November 6, 2020. LEGAL STANDARDS FOR MOTIONS FOR JUDGMENT ON THE PLEADINGS "A party may move for judgment on the pleadings." (CCP § 438(b)(1).) A plaintiff is entitled to judgment on the pleadings if "the complaint states facts sufficient to constitute a cause or causes of action against the defenda...

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: ...motion to quash of Michael Edward McClintock is GRANTED. OVERVIEW OF ALLEGATIONS AND COMPLAINT Defendant International Musician's League ("IML") is a business that provided bands for events doing business as "Lucky Devils Band." Defendant IML advertises that it will provide a band. When IML has a client it then notifies its roster of musicians, who can sign up for the event and plan at the event. IML pays each musician an amount that IML sets. IM...

Excerpt: ... be entered is a just one, nor is the court to act as a mere puppet in the matter. ... In the context of Proposition 65 litigation, necessarily brought to vindicate the public interest, the trial court also must ensure that its judgment serves the public interest." (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 61-62.) "[T]he trial court must look at the three [H&S Code 25249.7(f)(4)] factors and if a...

Excerpt: ... 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 persuasion ...

Excerpt: ...ct to the additional Orders of Court set forth below. STANDARD OF LAW "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigati...

Excerpt: ...nt, filed on June 25, 2019, should be stricken because Plaintiffs are not genuinely ignorant of its identity or the fact that it sold the trailer hitch to them that allegedly malfunctioned. Defendant's motion is denied because it requires the Court to consider numerous facts outside the scope of Plaintiff's Complaint and outside the scope of facts that the Court must judicially notice. See CCP § 437(a). The Court is required to accept Plaintiffs...

Excerpt: ...e proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest." (Cal. Rules of Court, rule 2.550(d).) In particular, the parties' contractual obligation to not disclose the terms of the Settlement Agreement and Release constitutes an overriding interest. (Cf. Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283.) The confidentiality of the settlement is a material t...

Excerpt: ...usiness on April 15, 2020, the hearing was reset to July 16, 2020. When the matter came before the Court on July 16, 2020, the Court continued the hearing to September 2, 2020, and ordered the parties to comply with their meet-and-confer obligations. See CCP § 2016.040 (required contents of meet-and-confer declaration); See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439 (sending letters with an articulation of your position not suff...

Excerpt: ...erse employment action such as termination; and 3) that his disclosure was a contributing factor in the decision to discharge him. (See CACI No. 4601.) Plaintiff's evidence, if credited, reflects that he engaged in several communications that qualify as protected disclosures, including in August or September 2015 (see Plaintiff's deposition, pages 41-48 and 60-61); in June 2016 (see Defendant's Separate Statement Fact ("SSF") No. 35); and in July...

Excerpt: ...onal claims for breach of contract, bad faith, misrepresentation and deceit. The new causes of action arise from facts discovered after the cross-complaint was filed and involve the same general nucleus of facts as the original complaint. 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 p...

Excerpt: ... the hearing."].) STANDARD OF LAW A motion for judgment on the pleadings may be brought by a plaintiff if "the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint." (CCP § 438(c)(1)(A).) "A motion for judgment on the pleadings is analogous to a general demurrer." (Westly v. California Pub. Employees' Ret. Sys. Bd....

Excerpt: ..., 141, 142, 145 and 146", those paragraphs are not subject to a demurrer. A demurrer cannot be granted as to a portion of a cause of action. (See Daniels v. Select Portfolio Servicing Inc. (2016) 246 Cal.App.4th 1150, 1167.) Those paragraphs could have been, but were not, addressed in PMG's motion to strike. (Id.) PMG's demurrer to the Eighth Cause of Action for Negligent Infliction of Emotional Distress is SUSTAINED, WITHOUT LEAVE TO AMEND, as e...

Excerpt: ... original hearing date of September 23. If RS failed to timely file and serve a responsive pleading, Plaintiff's remedy was to seek entry of RS's default; it is too late to do that now. Moreover, Plaintiff has not shown any prejudice from a purported one court day delay in service of the moving papers. The demurrers to the First Cause of Action for Action for Assault and the Fourth Cause of Action for Negligent Retention and Supervision are OVERR...

Excerpt: ... under the primary assumption of the risk doctrine, as articulated in Knight v. Jewett (1992) 3 Cal.4th 296 and Fortier v. Los Rios Community College District (1996) 45 Cal.App.4th 430. Therefore, Plaintiff in an amended pleading must allege specific facts showing that Defendants increased the inherent risks of the sport by allowed conduct by participants that was "totally outside the range of the ordinary activity" in the sport at issue. (Kahn v...

Excerpt: ...D IN PART WITHOUT LEAVE TO AMEND and OVERRULED IN PART as set forth below. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, October 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 Network, password # 5102676935. If a hearing is request...

Excerpt: ...e an Answer to the Complaint. The Court noted that Defendants could file a motion for judgment on the pleadings after retaining an attorney. The Trust retained attorney Gary Sherrer on August 20, 2020, but Defendant Colbert did not. Defendant Colbert filed this demurrer on August 27, 2020. The demurrer is overruled for several reasons. First, the demurrer is untimely. See CCP § 430.40(a). Second, the filing of the demurrer violates the terms of ...

Excerpt: ...amone only. The demurrer to the Third Cause of Action for Dependent Adult Abuse is SUSTAINED, WITHOUT LEAVE TO AMEND. Plaintiffs allege Kaiser failed to promptly diagnose Nicholas Arcamone as suffering from a stroke and effectively treat him for that condition. Plaintiffs allege Mr. Arcamone arrived at 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 ...

Excerpt: ... contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the...

Excerpt: ... of The Olson Children Irrevocable Trust dated June 17, 2017. The operative Verified First Amended Complaint was filed on April 18, 2019. The First Amended Complaint includes the following causes of action: (1) Foreclosure of Nonpossessory Lien over Personal Property; (2) Conversion; and (3) Fraudulent Conveyance (Civil Code § 3439 et seq.). Defendant Weekes served as the Trustee of the Children's Trust from 2017 until he purportedly resigned in...

Excerpt: ... amount of $2,000 payable by Defendants. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, October 13, 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 parti...

Excerpt: ... that this Court has personal jurisdiction over Bluecrew. Defendants' Demurrer is OVERRULED in its entirety. The Court notes as a preliminary matter that defendant Bluecrew's request for dismissal pursuant to CCP § 418.10 based on this Court's asserted lack of personal jurisdiction should have been brought as a separate noticed motion, rather than as part of the Demurrer. Nevertheless, the Court will rule on the substance of Bluecrew's Motion to...

Excerpt: ...131 and the declaration of Plaintiff's expert witness Dr. Fedora Jacobsen, paragraphs 14-16.) The motion is GRANTED as to Plaintiff's Second Cause of Action for Negligent Hiring, Employment, and Training, as unopposed. (See opposition brief at page 8.) The motion is DENIED as the Third Cause of Action for Negligent Supervision. Again, there is a triable issue of material fact as to whether the Hospital negligently supervised its staff and patient...

Excerpt: ...ice states that the Motion was timely served via personal service. Accordingly, the Court shall consider the Motion on its merits. Gardiner also argues that Plaintiff's opposition was untimely as it was filed on September 16, 2020 when it should have been filed no later than September 14, 2020. However, Gardiner was able to substantively respond to the opposition, so the Court shall consider the opposition brief as well. MOTION TO COMPEL On Novem...

Excerpt: ...o merit 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...

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: ...otion Contesting Good Faith Settlement on September 10, 2020. Forni Defendants then filed an opposition to Aquino Defendants' on September 23, 2020. Finally, Aquino Defendants filed a reply in support of the Motion on October 5, 2020. As a threshold issue, Forni Defendants argue that the Motion filed by Aquino Defendants is untimely. "Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal servi...

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: ...uphill from Plaintiff's property and runs under Melvin Road. The storm drain failures caused a large volume of water, mud and debris to flow down the hillside onto Plaintiff's property. Plaintiff claims that the failures were caused by the City's failure to maintain it properly. Plaintiff presented timely tort claims after each incident. After the first tort claim was presented, the City retained a third- party claim adjuster to work with Plainti...

Excerpt: ...the driver of the truck pulled the rig away from the loading dock. Mr. Ochoa fell and sustained serious injuries. In Plaintiff's supplemental opposition to the demurrer, dated August 26, 2020, counsel acknowledges that TQL could not have been the employer of the driver. Defendant's demurrer to Plaintiff's subrogation claim based on the forum selection clause in the contract between TQL and Best Express Foods, Inc. is OVERRULED. Defendant's argume...

Excerpt: ...plaint no later than fourteen (14) 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 properly pleaded factual allegations, fa...

Excerpt: ...ns, at any time during proceedings, including during trial, as long as the amendment is "in the furtherance of justice." (Code of Civil Procedure ["CCP"] § 576; see also CCP § 473(a)(1) [allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rights of other parties." (McGuan v. Endov...

Excerpt: ...rriding interest that overcomes the right of public access to the record; (2) [t]he overriding interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) [t]he proposed sealing is narrowly tailored; and (5) [n]o less restrictive means exist to achieve the overriding interest." (Cal. Rules of Court, Rule 2.550(d).) MOTION TO SEAL Defendant seeks to s...

Excerpt: ... to pay holder rent at another warehouse. Defendant argues that the damages are not allowed, are therefore improper and should be stricken from the Third Amended Complaint under Code of Civil Procedure section 1174(b) and Code of Civil Procedure sections 436, 431.10(b)(3). Defendant relies primarily on the court's holding in Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 ("Foreman"), which found that the damages when a landlord failed t...

Excerpt: ...ary 2021 and again noted neither party had posted the fees. Plaintiff subsequently paid the fees on January 10, 2020, the day after the CMC. Defendant now argues that Plaintiff's untimely payment the fees should deprive Plaintiff of a jury trial pursuant to C.C.P. 631. Section 631, provides that "[t]he right to a trial by jury ... shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f). A...

Excerpt: ... to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court ..." The motion under CCP 395 and 395.5 is timely. Plaintiffs expressly by email and then implicitly by stating that they would file a first amended complaint expended the time for defendant to file a demurrer an motion to transfer venue. BURDEN AND EVIDENCE P...

Excerpt: ...substantial interest in the action as a whole[, and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration." (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) "An affidavit submitted in su...

Excerpt: ...ra 2.24.) A Civil Code 1542 release that is limited to the "released claims" is either surplussage if does not expand the released claims or unlawful if it does expand the released claims. The scope of the release for the absent class members cannot include a Civil Code 1542 release or an equivalent release. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 640, 645 [trial court would not approve a Civil Code 1542 release in cla...

Excerpt: ... up to $30,000 (33%), costs of up to $7,000, a service award of $7,000 for the class representative, a net PAGA payment of $3,000, and settlement administration costs of up to $4,000. After these expenses of approximately $51,000, the class would get $39,000. The average payout per class members would be $1,258. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes a...

Excerpt: ... finds the Stipulation of Settlement to be unambiguous. The net proceeds of the Hayward Property sale were to be held in escrow or a similar account for later division. (¶ 1.) The Lathrop Property would then be appraised, and the difference between the two properties' values ("the difference") would then be calculated. (¶ 2.) Charnjit would then be paid (or owe, as it turns out) half that difference to the escrow account. (¶ 4.) Robin is then ...

Excerpt: ...he hearing was then continued at the request of the parties to October 8, 2020 on June 12, 2020. Defendant 24 Hour Fitness USA, Inc. filed a notice of bankruptcy stay in June 2020. Plaintiff therefore does not proceed against 24 Hour Fitness USA, Inc. at this time. The Court begins by admonishing Plaintiff's counsel that they must file separate motions for summary adjudication if they request rulings against separate parties represented by separa...

Excerpt: ... filed late. If the City failed to file a timely response to Plaintiffs' Petition, Plaintiff's remedy was to seek entry of the City's default. It is too late to do that now. In addition, failure to meet and confer prior to filing a demurer is NOT a basis to overrule it. (See Code of Civil Procedure § 430.41(a)(4).) Plaintiff Glen Stevick owns real property located at 1722Walnut Street in Berkeley. In 2017, Plaintiff replaced an accessory structu...

Excerpt: ... no later than fourteen (14) days from the date of this Order. STANDARD OF LAW "The court may, upon a motion . . . 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.) A...

Excerpt: ...lation allowing Nhan and Le to file the SACC, but they did not subsequently do so. Nhan and Le are directed to file their SACC with the Court no later than October 8, 2020. Christina seeks summary adjudication as to (1) certain causes of action alleged in her First Amended Complaint ("FAC"), and (2) each cause of action alleged in the SACC. Rather than ruling separately on each of the 15 issues set forth in Christina's Notice of Motion, the Court...

Excerpt: ...5, 31, and 33-43. IT IS FURTHER ORDERED THAT Defendant amend its responses to Plaintiff's Request for Production of Documents (Set Two), Request Nos. 8-10 pursuant to this Order. Plaintiff's Request for Sanctions is DENIED. "If a party filing a response to a demand for inspection, copying, testing, or sampling . . . thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, th...

Excerpt: ...t ("FACC") of Nhan Van Pham ("Nhan") and Hai Thanh Pham aka Ricky Hai Pham ("Ricky"). The Court declines to separately rule on each of the 25 issues set forth in GM's Notice of Motion but will instead address each cause of action addressed in GM's motion. As to GM's First Cause of Action for Quiet Title in the SAC, GM's motion is DENIED. The undisputed facts establish that, as of November 2017, GM was the owner of the real property that is the su...

Excerpt: ...and not on behalf of the aggrieved employees. "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.) (See also ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175, 185.) On 7/9/20, defendant removed the class case to federal court. (Juarez v. Saia Motor Freight, N.D. Cal., Case 3:20-cv-045...

Excerpt: ...culty in securing evidence and deposition testimony from witnesses who are Chinese nationals. Defendant's 9/30 Response effectively rejects the proffered stipulations, asserts that Defendant needs to be able to take depositions of witnesses in China in order to prepare for trial, and cites to a 9/29/2020 U.S. Dept. of State Travel Advisory stating in relevant part: "Reconsider travel to the People's Republic of China (PRC), including the Hong Kon...

Excerpt: ...� 2016.040 and 2030.300(b)(1). Counsel are advised that their meet-and-confer efforts should go beyond merely sending letters stating their respective positions. See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439; and Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 428. In the future, the Court will require the parties to limit the number of meet-and-confer letters and to discuss the issues in person or by telephone prior to the...

Excerpt: ...ation. (See, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) However, Defendant's objections based on the constitutional right to privacy are potentially meritorious. Defendant's employees who have made complaints of disability discrimination have a constitutional right to privacy in their personnel information. (See Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652.) Life Technologies was disapproved by Willi...

Excerpt: ...laintiff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) "The presumption is, in the absence of an affirmative showing in that particular, that the county in which the title of th...

Excerpt: ...nd a copy served on each party at least nine court days . . . before the hearing."].) STANDARD OF LAW A motion for judgment on the pleadings may be brought by a plaintiff if "the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint." (CCP § 438(c)(1)(A).) "A motion for judgment on the pleadings is analogous to a ge...

Excerpt: ... Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 804-807.) The Court finds that the declaration is adequate to support the requested service award, as modified below. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, October 6, 2020 contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested he...

Excerpt: ...ne "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 pleading are deemed to be true, however improb...

Excerpt: ...991) 2 Cal.App.4th 153, 157. Plaintiff alleges that Defendant and his mother Tiffany Brown made misrepresentations of fact in order to induce her to execute documents purporting to relinquish guardianship of the couple's son, Jacoby. Plaintiff alleges that Defendant and his mother told her that the document was necessary so that Defendant's mother could take Jacoby to doctor's appointments in Texas while the couple was working to find housing in ...

Excerpt: ...rd King, and Mardi C. Dier) filed papers in opposition, which the three Underwriter Defendants (Merrill Lynch,Pierce, Fenner & Smith Inc., Leerink Partners LLC, and Evercore Group L.L.C.) request to join. The request for joinder is GRANTED as unopposed, and for reasons discussed further below, the motion is GRANTED. LEGAL STANDARDS Class certification in California state courts is governed by Code of Civil Procedure ("CCP") Section 382. A Court h...

Excerpt: ...ief until after Siteworks filed a Notice of Non-Opposition on September 28, 2020. Accordingly, the Court shall not consider Plaintiff's untimely opposition papers. Siteworks makes this Motion to enforce the Court's previous order on November 19, 2019 compelling Plaintiff's responses to discovery requests served on August 23, 2019. (Declaration of Anna J. Niemann ["Niemann Dec."] ¶¶ 6-7, Ex. A.) On November 21, 2019, the Court ordered that "Plai...

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...

Excerpt: ...ifically, the Court ORDERS Plaintiffs either to complete, serve and file California Court Forms FL-142 (Schedule of Assets and Debts) and FL-150 (Income and Expense Declaration) or to serve and file declarations containing all of the information to be provided in Forms FL-142 and FL-150, no later than Wednesday, October 14, 2020. Defendant Ebay, Inc. ("Defendant" or "eBay") may serve and file a response to Plaintiffs' supplemental declarations no...

Excerpt: ...ed this action against Union and other defendants on September 22, 2015. On April 7, 2017, Plaintiff filed an alleged proof of service stating that he mailed a copy of the Complaint and amended summons, and a case management order through certified mail on April 6, 2017. However, Union states that Plaintiff did not include with the mailing two copies of the notice of acknowledgment. (Declaration of David M. Fujimoto, Ex. B.) Union states that no ...

Excerpt: ... with Special Interrogatories, Set Two on May 12, 2020. After multiple extensions were granted on the basis that substantive responses would be provided rather than objections, responses were due July 14, 2020. However, on July 15, 2020, Plaintiff electronically served unverified responses with purportedly meritless objections. Plaintiff then served verifications on July 16, 2020. Plaintiff's counsel represented that the responses were untimely d...

Excerpt: ...ed at Defendant's stores in San Jose and Brentwood between 1982 and 2018. The Court DENIES Defendant's alternative Motion for Summary Adjudication in its entirety. If any party wishes to contest this tentative ruling, no later than 4:00 PM ONE (1) COURT DAY prior to the 10/1/2020 hearing (exclude Saturday, Sunday and national holidays) contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress...

Excerpt: ...aintiffs must submit a declaration with the required information. The court has concerns about the timing of funding and distributing the settlement funds. Defendant will fund the settlement over 24 months. (Agt para 49) The absent class members, the named plaintiff, and counsel will be paid approximately 30 months after preliminary approval, taking into account 5 months for class notice and opt out, 24 months of installment payments, and 1 month...

Excerpt: ...lease for the absent class members cannot include a Civil Code 1542 release or an equivalent release. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 640, 645 [trial court would not approve a Civil Code 1542 release in class settlement].) The release of claims by the members of the class is limited by the "factual predicate rule." (Campbell v. Facebook, Inc. (9th Cir. 2020) 951 F.3d 110, 1124; Hesse v. Sprint Corp. (9th Cir. 2...

Excerpt: ... 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 properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and...

Excerpt: ...established the Dawan-Dillard Almond Orchard Partnership (the "Partnership"). (Id.) Plaintiff and Decedent farmed the land and monetized some of the resources available from the land as joint owners and operators. (Id.) When Mr. Dillard ("Decedent") passed away in October 2001, Plaintiff became sole living owner of the land and partnership. (Id.) Ms. Lonnie Dillard, Decedent's daughter, was appointed as the administrator of Estate. (Id., para. 12...

Excerpt: ...to Rogala's Cross-Complaint. Specifically, the Court sustained the Demurrer to the First, Second and Fourth Causes of Action as barred by the one- year statute of limitations. (Business and Professions Code sec. 340.6.) The Court granted Rogala leave to amend these claims. The Court overruled the Demurrer to Rogala's Third and Fifth Causes of Action (breach of fiduciary duty claims), and the Sixth Cause of Action (fraud). Finally, the Court susta...

Excerpt: ...ant owes the sum of $1,800,000 pursuant to the terms of the Amended Asset Purchase Agreement, dated July 12, 2019. Plaintiff contends that Defendant owes the additional sum pursuant to a post-closing adjustment of the purchase price. Defendant paid Plaintiff the sum of $35,000,000 at the time of the sale. Defendant gave Plaintiff a promissory note in the sum of $10,000,000 as part of the purchase price. The application is denied because Plaintiff...

Excerpt: ...e Court that the arbitration provision found in paragraph 18 is identical to the provisions in the Employment Agreements executed by all of the shareholders of AEBP, including its President, Dr. Sasu. Plaintiff Green was invited to join as a shareholder in 2016. In 2018, the nine other shareholders of AEBP agreed to end the shareholder agreement with Plaintiff due to performance issues. Plaintiff has not met her burden of showing that the arbitra...

Excerpt: ...he Court itself dismissed this action, with prejudice, on March 8, 2019. This issue therefore appears to be moot. Second, Defendant contends that Plaintiff has failed to release the lien on her property. The evidence submitted by Plaintiff demonstrates that the lien was released on December 2, 2019. Third, Defendant contends that Plaintiff has failed to properly account for and apply Defendant's settlement payments. The Court could not find any e...

Excerpt: ...r Premises Liability. Second, Plaintiffs must allege facts, if possible, taking their claims outside the immunity provided by Government Code section 845. As presently pled, Plaintiffs' claim is based entirely on BART's failure to provide police protection in response to a report Plaintiffs made on BART's "watch App" about a "violent, disruptive homeless person" on the BART train on which Plaintiffs were riding. Absent any additional facts pled, ...

Excerpt: ...y sanction[.]" (CCP § 2033.280(b).) "The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220." (CCP § 2033.280(c).) "It is mandatory that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to s...

Excerpt: ... 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 § 437c(f...

Excerpt: ...he interests of the LWDA in civil enforcement are defended and that the settlement is fair, adequate, and reasonable under all the circumstances. (See O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1133; see also Gov't Code § 12652(e)(2)(B) [requiring False Claims Act qui tam settlements be "fair, adequate, and reasonable under all the circumstances"].) The Court therefore takes guidance from the context of class action...

Excerpt: ...0 [included with fees], a service award of $10,000 for the class representative, a net PAGA payment of $12,000, and settlement administration costs of $8,000. After these expenses of $89,333, the class would get $58,667. The average payout per class members would be $193. This is $25 per allegedly inaccurate wage statement The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The mot...

Excerpt: ...tnership bank if any; (3) initiating any contact with any vendor or potential vendor of the partnership; and (4) interfering with the business of the SAAK Partnership in any manner. The Court takes notice of its August 28, 2020 order granting in part Defendant's ex parte application for a temporary restraining order and its July 2, 2020 order granting in part Defendant Spanier's prior motion for preliminary injunction. Defendants' motion is proce...

Excerpt: ...y party wishes to contest the tentative ruling, NO LATER than 4:00 PM ONE (1) COURT DAYS prior to the current 9/23/2020 hearing date (exclude Saturday, Sunday and national holidays) 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: ...Complaints on identical grounds. It argues that both Plaintiffs lack standing, either personal or associational, to assert claims under the Unfair Competition Law ("UCL") (Bus. & Prof. Code §§ 17200, et seq.). It argues that the Court should abstain from adjudicating this case under the doctrine of primary jurisdiction. It also argues that the relief requested by Plaintiffs is improper under the UCL. For the reasons discussed below, the demurre...

Excerpt: ...Complaints on identical grounds. It argues that both Plaintiffs lack standing, either personal or associational, to assert claims under the Unfair Competition Law ("UCL") (Bus. & Prof. Code §§ 17200, et seq.). It argues that the Court should abstain from adjudicating this case under the doctrine of primary jurisdiction. It also argues that the relief requested by Plaintiffs is improper under the UCL. For the reasons discussed below, the demurre...

Excerpt: ...ernative Holdings gave notice on June 5, 2019, of a trustee's sale. Plaintiffs sought to prevent the foreclosure and obtained a Temporary Restraining Order ("TRO"). Thereafter, Plaintiffs filed a complaint seeking to recover the attorney's fees incurred in seeking the TRO; an "overpayment" by Plaintiffs to satisfy the loan at issue; and punitive damages. The SAC contains four causes of action: (1) breach of contract; (2) violation of statute (Civ...

Excerpt: ...xth and Seventh Causes of Action each for Negligent Interference with Prospective Economic Relations are SUSTAINED WITHOUT LEAVE TO AMEND. "[A] corporate agent cannot be liable for interfering with its principal's contract." (Mintz v. Blue Cross of Calif. (2009) 172 Cal.App.4th 1594, 1606; see also Shoemaker v. Myers (1990) 52 Cal.3d 1, 24-25.) These causes of action appear to be improperly restated breach of fiduciary duty claims, which Defendan...

Excerpt: ...laintiff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) "The presumption is, in the absence of an affirmative showing in that particular, that the county in which the title of th...

Excerpt: ...of the opposition and reply briefs which were not timely scanned for consideration prior to the original hearing date. STANDARD OF LAW "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 the proceeding[.]" (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 488-89.) A court's discretion i...

Excerpt: ...Hospital on February 11, 2019. Plaintiff contends that she was ultimately hospitalized as a result of the damage to her tooth caused by the hygienist, and that her ability to book modeling jobs has been adversely affected by the condition of her teeth. Plaintiff claims that she will sustain damages in the sum of $2.3 million when future loss of earning capacity is taken into account. In support of its motion, Defendant Alameda Health System has s...

Excerpt: ...liability insurer for $15,000. Plaintiff then filed the instant case against his own insurer, GEICO, on October 10, 2019, seeking a recovery under the underinsured motorist clause of his automobile policy. The Court has reviewed the arbitration agreement in Plaintiff's automobile policy. The clause states that if Plaintiff and GEICO are not able to agree on the contractual damages owed by GEICO, if any, then the parties have the right to demand t...

Excerpt: ... ("If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement".) The Settlement Agreement contained a confidentiality clause, prohibiting the Parties from disclosing many of the details of the Agreement, including the amount of the settlement. (Rolando Decl., Exh. 1, Art. 5.0.) In 2020, Plaintiff sought a restraining order against Defendant, wh...

Excerpt: ...t, pursuant to CCP §§ 473.5, 473(d) and 418.10 (the "Motion"), the Court DENIES CCM's Motion to Set Aside Default and for Leave to Defend the Action pursuant to CCP §§ 473.5 and 473(d). Based on the record before it, the Court does not find credible defendant Desiree Cachette's ("Ms. Cachette") declaration that she, in her capacity as CCM's agent for service of process, did not have actual notice of the present lawsuit prior to "late November...

Excerpt: ...OE PSEUDONYM Filing a complaint under a pseudonym such as "John Doe" impairs the public's right of access to court records (CRC 2.550(c)). It also violates the statutory requirement that a complaint include "names of all the parties" (CCP § 422.40). Therefore, plaintiffs are not permitted to use a pseudonym absent "exceptional circumstances." (Doe v. Lincoln Unified School Dist (2010) 188 Cal.App.4th 758, 767.) Adopting the Ninth Circuit standar...

Excerpt: ...cated at 328 Lenox Avenue, Oakland. Beacon produced responsive documents, but they were redacted. Beacon indicated that the documents were redacted to remove private financial information and information not related to the subject real property. In his declaration filed August 6, 2020, at paragraphs 6a - 6tt, defense counsel James Patrick explains the basis for each redaction as to each document produced by Beacon, identified by bates number. Bas...

Excerpt: ...xth and Seventh Causes of Action each for Negligent Interference with Prospective Economic Relations are SUSTAINED WITHOUT LEAVE TO AMEND. "[A] corporate agent cannot be liable for interfering with its principal's contract." (Mintz v. Blue Cross of Calif. (2009) 172 Cal.App.4th 1594, 1606; see also Shoemaker v. Myers (1990) 52 Cal.3d 1, 24-25.) These causes of action appear to be improperly restated breach of fiduciary duty claims, which Defendan...