Excerpt: ...intiff's compensatory damages are capped at $100,000 each (total of $200,000), which is the defendant's insurance policy limits with GEICO." (Exhibit B to the Declaration of Edgar Hawkyard filed December 17, 2019. The matter was submitted to arbitrator Patricia Tweedy, although the arbitrator was not advised of the pre-arbitration "cap" on recovery. Ms Tweedy issued her decision and award on September 26, 2019 in which she awarded $107,786 to pla...

Excerpt: ...d an unopposed motion to compel Plaintiff's discovery responses. Plaintiff did not and has not complied with the Court's order, including its order that Plaintiff pay monetary sanctions. The present motion is unopposed. Accordingly, for the reasons discussed, Defendant's motion is GRANTED. LEGAL STANDARDS The Court has discretion to issue terminating sanctions in response to abuses of the discovery process, including: "(1) An order striking out t...

Excerpt: ...pposition to the MSJ, Plaintiffs have produced evidence in the form of a declaration of Deborah Van Evera creating a triable issue of material fact regarding whether Warren Van Evera ("Decedent") ever replaced original brakes on one of Defendant's Fruehauf trailers. The Motion for Summary Adjudication ("MSA") with respect to Plaintiffs' Third Cause of Action for False Representation (Restatement 2nd Torts § 402B) is GRANTED. Plaintiffs have not ...

Excerpt: ... place that is within 75 miles of the courthouse. Having reviewed the parties' papers, the Court cannot conclude that Mr. Schmidt would endure exceptional hardship if he were required to travel to California for a few days due to his business and family obligations. The Court believes that Mr. Schmidt can handle many of his business duties remotely with portable electronic devices. Mr. Schmidt impliedly acknowledged that he would be required to l...

Excerpt: ...s entitled "to cross-complain against entities not originally parties to the action [if] there is a sufficient subject matter connection between the action and the cross-complaint." (See Santa Barbara Channelkeeper v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1186 [explaining permissive cross-complaint procedure]; Code Civ. Proc. § 428.50(c).) Plaintiffs filed a Complaint on 10/26/18, alleging causes of action related to wrongful evic...

Excerpt: ...es "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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reaso...

Excerpt: ...er, the "complete loan modification" attached as Exhibit G to the First Amended Complaint contains documents dated October 22, 2019, only two days prior to the trustee's sale. (See, e.g., page 7 of Exhibit G.) Civil Code § 2923.6 does not preclude a trustee's sale unless the complete application is submitted at least five business days prior to the scheduled trustee's sale. (See § 2923.6(c).) Plaintiff is given leave to amend to explain the dis...

Excerpt: ...njamin Fang) is largely inadmissible. Mr. Fang demonstrates no personal knowledge of Plaintiff's transaction with Tesla and cannot competently testify that Plaintiff signed (electronically or otherwise) the arbitration agreement attached to Plaintiff's First Amended Complaint. Instead, Mr. Fang testifies about what Plaintiff "would have been asked to sign", and concludes that because what is purportedly Plaintiff's signature appears in some blank...

Excerpt: ...ded Complaint alleging a new cause of action for restitution and unjust enrichment. "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.) "[I]t is an abuse of discretion to deny leave to amend where the opposing...

Excerpt: ...nt contains four causes of action entitled, respectively, "Constructive Fraud," "Breach of Contract," "Breach of Fiduciary Duty" and "Equitable Accounting." First Cause of Action for "Constructive Fraud" The necessary elements for a cause of action based on intentional misrepresentation are: (1) an affirmative misrepresentation of a material fact; (2) knowledge of falsity (or 'scienter'); (3) intent to defraud, i.e., to induce reliance; (4) justi...

Excerpt: ...mployers of driver Jose Bonilla Valladares, who allegedly hit and killed Plaintiffs' decedent as she was crossing the street. The Court declines to overrule the demurrer on the basis that it was purportedly filed one day late. The demurrers to the First Cause of Action for Negligence and the Second Cause of Action for Negligence Per Se are SUSTAINED, WITH LEAVE TO AMEND to allege facts demonstrating (1) how AmeriSourse Bergen (sued as Doe 1) bear...

Excerpt: ...ducing evidence to Plaintiff to show that triable issue of material fact exists. Plaintiffs have failed to meet this burden, because they apparently filed no opposition to the MSJ. Plaintiffs allege that Decedent, a career automobile, tractor and truck mechanic was exposed to respirable asbestos while working with brake and other auto parts produced, distributed or sold by Defendant. Motion for Summary Judgment Defendant targets the threshold exp...

Excerpt: ...TED. In this action, Plaintiffs allege that decedent Warren Van Evera ("decedent") was exposed to asbestos during his employment with Cochran and Nichols from 1974 to 1979, because he worked with asbestos-containing brake linings under the WorldBestos brand. (Plaintiffs' Additional Facts ("Add. Facts Nos. 1-4.) Lear Siegler does not dispute that it is responsible for the WorldBestos brake pads manufactured and sold during the period from 1974 to ...

Excerpt: ...er January 1, 1983 to shift the burden to Plaintiffs to produce evidence on this issue to create a triable issue of material fact. The Court finds that Plaintiffs have failed to meet this burden because Plaintiff's evidence is entirely speculative on this issue. (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1105.) Motion for Summary Judgment Among other arguments, Defendant targets the threshold exposure sub-element of the ess...

Excerpt: ... after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed. (b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant. CCP § 583.250 provides: (a) If service is not made in an action within the time prescribed in this article: (1) The action shall not be further prosecuted and ...

Excerpt: ...is no defense to a cause of action by proving each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff has met that burden, the burden shifts to the defendant or to show that a triable issue of one or more material facts exists as to that cause of action. (Code of Civil Procedure section 437c(p)(1). If plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Aguila...

Excerpt: ...econd Cause of Action for Unseaworthiness. The Court is satisfied that it has both the subject matter and the personal jurisdiction to adjudicate this action pursuant to the "saving to suitors" clause of the Federal Judiciary Act of 1789 (28 U.S.C. § 1333(1)). On June 4, 2016, at 4:30 p.m., the American Challenger was travelling from Wake Island to Honolulu when Plaintiff sustained his first injury while on duty. Plaintiff Sanchez is or was an A...

Excerpt: ...moving party, Plaintiff bears the initial burden of producing sufficient admissible evidence to make a prima facie showing that no triable issues as to any material facts exist and that the jury would be required to find any underlying material fact more likely than not. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851. This is consistent with the plaintiff's ultimate burden of persuasion at trial that each element of its causes o...

Excerpt: ...cluding acetone and isopropanol, to permeate the business premises occupied by Portofino. Plaintiffs allege that they notified Huynh of this problem on various occasions in 2017 and 2018, and notified her that Tri was experiencing health problems as a result, but she did not close her door, use an air purifier, use a ventilator, and take any other action to remediate the problem. Plaintiffs allege that they were eventually forced to vacate the pr...

Excerpt: ...e 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 to any cause of ...

Excerpt: ...r a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of ...

Excerpt: ..." (CCP § 418.10(a).) "When a defendant challenges the court's personal jurisdiction on the ground of improper service of process 'the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.'" (Summers v. McClanahan (2006) 140 Cal. App. 4th 403, 413.) Further, "[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment ...

Excerpt: ...is no defense to a cause of action by proving each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff has met that burden, the burden shifts to the defendant or to show that a triable issue of one or more material facts exists as to that cause of action. (Code of Civil Procedure section 437c(p)(1). If plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Aguila...

Excerpt: ...a breach of the warranty of habitability and wrongful eviction case. The subject property is located at 6616 Telegraph Avenue, in Oakland. The case was reassigned to Department 517 on August 16, 2017. The Court and the parties are familiar with the facts in this case and its procedural history. The Court will therefore not reiterate them here. In October 2018, Defendants entered into a settlement with Plaintiffs for the dismissal of the First Ame...

Excerpt: ...demurs to the SAC. Defendant's demurrer is SUSTAINED. As written, the SAC fails to state a cause of action upon which relief can be granted. (See CCP § 430.10(a), (e), (f).) The Complaint does not appear to be amenable to successful amendment, and therefore the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. The complaint against Defendant is DISMISSED. "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v...

Excerpt: ...is not supported by any documentation, lack foundation with regard to attorney's fees and costs incurred to date. Plaintiff's response to Form Interrogatories cannot be offered against Ply Gem (Code Civ. Proc., sec. 2030.410) so there is no admissible evidence of CP West's damages. In addition, there is no showing that the damages claimed by Plaintiff are identical to the damages incurred by CP West as a result of Ply Gem's conduct. By its nature...

Excerpt: ...agon-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.) Th...

Excerpt: ... Demurring Defendants now demur to the causes of action brought against them. As presently alleged, the challenged causes of action as brought against the Demurring Defendants fail to state a claim upon which relief can be granted. (See CCP § 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule . . . ."].) However, the Court is not yet convinced that Plaintiffs will be unable t...

Excerpt: ... has been diagnosed with malignant mesothelioma. He alleges that he was exposed to Defendant's asbestos-containing products while working as a custodian at various car dealerships. Demurrer to Third Cause of Action - False Representation per Restatement 2d of Torts § 402B California case law recognizes a cause of action for a seller's false representations pursuant to §402B of the Restatement 2nd of Torts. (Westlye v. Look Sports Inc. (1993) 17...

Excerpt: ...e a claim upon which relief can be granted. (See CCP § 430.10(a), (e), (f); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] given."].) Defendants' demurrer is SUSTAINED IN PART WITH LEAVE TO AMEND. Plaintiff is ORDERED to file an amended complaint no later than 20 days from the date of service of notice of entry o...

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

Excerpt: ...ornia is GRANTED, consistent with the Discovery Referee's [Recommended Order]. In this action, the parties entered into a Stipulation filed May 15, 2019, appointing Bruce Edwards of JAMS as Case Administrator/Discovery Referee ("Referee"). Ply Gem objects to the Referee's Recommended Order compelling Ply Gem to allow Plaintiff CP V JLS, LLC ("Plaintiff") to inspect Ply Gem's manufacturing plant in Corona, California. Ply Gem contends that a party...

Excerpt: ...tions that the policies and practice are unlawful and unconstitutional. MOTIONS TO SETTLE CLASS CLAIMS AND TO DISMISS CLASS ALLEGATIONS. This case was filed as a putative class action. Therefore, the case cannot be settled or dismissed without Court approval. C.R.C. 3.769 and 3.770 Class actions cannot be settled without Court approval to ensure that the named plaintiff and the class counsel have represented the absent class members adequately. S...

Excerpt: ...e Order that may be brought or instituted by third persons, such as the claims made by Plaintiff in this action. LEGAL STANDARD A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more ele...

Excerpt: ...n for Summary Adjudication ("MSA") with respect to Plaintiffs' (1) Second Cause of Action for Strict Liability; (2) Third Cause of Action for Negligent Misrepresentation; (3) Fourth Cause of Action for Fraudulent Nondisclosure; and (4) claim for punitive damage is GRANTED IN PART and DENIED IN PART. With respect to Plaintiffs' Strict Liability Cause of Action, the Court finds that Arb's Separate Statement is inadequate with respect to its MSA to ...

Excerpt: ... located on University Avenue in Berkeley, and that those business were disrupted by construction work that Brown did on a building adjacent to Plaintiff's business, causing economic losses. Plaintiff's First Amended Complaint, the operative pleading in this case, alleges three causes of action against Brown, for Negligent Interference with Prospective Economic Relations, Nuisance, and Exemplary Damages. The Court will accept, for the purposes of...

Excerpt: ...ruck mechanic was exposed to respirable asbestos while working on Caterpillar trucks and diesel-using vehicles. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing...

Excerpt: ...ntirely clear, it has an obligation to provide a response that is as complete as possible subject to the objection. See CCP §§ 2030.220(b) and 2030.240(a). Furthermore, if Defendant contends that it does not have certain information regarding the design of the Walkway Wall, it must set forth its contention in the response and have a corporate representative verify the response. See CCP § 2030.220(c) (counsel must also make a reasonable inquiry...

Excerpt: ...intiff's compliance with this Order in regards to discovery responses is 10 days from the date of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. Defendant's request for an order compelling responses to form interrogatories, served on Plaintiff Diane Atkinson on or around September 25, 2019, is GRANTED. Plaintiff is ORDERED to serve full, complete, and verified responses, wit...

Excerpt: ...to Quash insofar as the business records subpoenas are overbroad in scope and time. Defendant has stated in its opposition that it is agreeable to limiting the time period to medical records on or after January 1, 2015, and offered to enter into a stipulated protective order. Plaintiff has accepted these conditions. Therefore, the Court ORDERS that the any medical records produced shall be dated on or after January 1, 2015 through the date of pro...

Excerpt: ...ummary Adjudication ("MSA") with respect to Plaintiffs' claim for punitive damage is GRANTED. The Court finds that Plaintiffs' discovery responses are sufficiently "factually devoid" with respect to Plaintiffs' alleged entitlement to punitive damages based on Hood's alleged conduct. Further, Plaintiffs in opposition to the MSA fail to provide evidence tending to show that Hood acted with malice, oppression or fraud during the time period at issue...

Excerpt: ...he Department of Fair Employment and Housing ("DFEH") have thus far not been successful due to the parties' lack of diligence. The Court issued the order overruling Defendant's Demurrer and ordering Defendant to file its Motion for Summary Judgment on March 8, 2019. The Court agrees with Defendant's assertion that Plaintiff is largely responsible for the delays. The Court continues the hearing because it is not satisfied with the evidentiary reco...

Excerpt: ...bd. (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, reading it as a whole and its parts in their context and treats the demurrer as admitting all material facts properly pleaded. [Citation.]" (Blank v. Kirwan (1985) 39 Cal...

Excerpt: ...96, 107. Decedent Kenneth Dale ("Decedent") died of mesothelioma allegedly caused in part by breathing in asbestos-containing dust produced by brake parts and clutch assemblies he purchased from Kragen, Defendant's predecessor in interest, in Healdsburg, CA, which parts Decedent used for home auto repair. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show th...

Excerpt: ...eging various causes of action against multiple defendants, in Action No. HG18900038, he "carries" those allegations forward in the event that the orders granting the anti-SLAPP motions are reversed and the claims are reinstated. Pursuant to Code of Civil Procedure section 128.7, Signing, filing and advocating a pleading with the court is a certification, inter alia, that (1) the pleading has not been presented primarily for an improper purpose, ...

Excerpt: ... The Court has previously issued two preliminary injunctions related to Plaintiffs' protest activities. On December 21, 2018, this Court entered an Order Granting Preliminary Injunction preventing Plaintiffs from staging protests in certain Whole Foods' stores in the Bay Area where protests had previously occurred. After the preliminary injunction was granted, however, Plaintiffs continued to protest inside Whole Foods Market stores in other loca...

Excerpt: ...ew or further trial granted on all or part of the issues, on the application of the party aggrieved, for . . . [i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law." (CCP § 657.) "The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses." (Seffert v. Los Angeles Transit Lines (1961) 56 Cal. 2d 498, 507.) "[W]hen ...

Excerpt: ...has not made any of these payments. Since the judgment was entered, H5 was forced to sell two of its three restaurants, and the proceeds were used to pay more senior claimants. The class representatives now move for an Order approving a compromise of the previously approved and entered judgment. Under the terms of the compromise, H5 would only be liable for a single payment of $250,000, which it has already transmitted to the settlement administr...

Excerpt: ... 67 Cal.App.4th 1253, 1255.) 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 ...

Excerpt: ... in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Id.) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (CCP § 1032(b).) "[T]he trial court has no discretion to order each party to bear h...

Excerpt: ...thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed." (CCP § 918(b).) "This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed." (CCP § 918(c).) A stay under section 918, as sought here by General Cable, "does not extinguish or prevent the creation of a lien under Artic...

Excerpt: ...r. When personal service proved impossible, Plaintiff mailed the summons and complaint with a notice and acknowledgment of receipt to Defendant's residential address. 18 days later, Plaintiff filed an ex parte application for service by publication. The order for publication was signed on 7/31/19. Plaintiff paid a publication fee of $650 to the Contra Costa Times on 9/8/19. Defendant answered the Complaint on 8/12/19. When a plaintiff attempts to...

Excerpt: ...rom default is mandatory. No later than January 24, 2020, Defendants shall serve and file a copy of their Answer in the form attached as Exhibit A to Defendants' counsel's declaration filed in support of the motion. Further, the Court ORDERS Defendants' counsel, David R. Griffin, to pay Plaintiff $500 in sanctions to Plaintiff as a result of Defendants' counsel's mistake, inadvertence, surprise or neglect no later than Friday, January 31, 2020. (...

Excerpt: ...nic was exposed to respirable asbestos while working on Peterbilt and Kenworth branded trucks originally assembled by Paccar. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has disc...

Excerpt: ...0. The Stipulation and Settlement Agreement ("Settlement Agreement") states that there will be attorneys' fees up to $25,000, an amount equal to one-third of the settlement amount (33.33%); costs of litigation up to $3,500; a service award of $5,000 to plaintiff Angala; settlement administration costs of up to $3,500; and an allocation to the PAGA claims of $5,000, 75% payable to the LWDA and the rest to the Net Settlement Fund. Plaintiffs reques...

Excerpt: ...pproving administration costs to Simpluris, Inc. in the amount of $17,831.00; and (7) approving the PAGA settlement amount of $15,000, of which $11,250 will be paid to the Labor and Workforce Development Agency. The Court GRANTS FINAL APPROVAL of the proposed class settlement. The Complaint alleges failure to provide meal periods, unpaid wages, failure to provide itemized wage statements and other wage-related and PAGA claims. There are 596 class...

Excerpt: ...sist him. Feldman, in which a landlord brought an anti-SLAPP motion against the cross-complaint of a tenant and subtenant, is inapposite. The anti-SLAPP statute does not bar defendant from raising defenses to plaintiff's unlawful detainer claim. To the extent plaintiff contends that CCP §425.16 bars affirmative defenses regarding the veracity or legal sufficiency of the various notices served in this case, this argument is not well taken. Defend...

Excerpt: ...nsent judgment to resolve the action. MOTION FOR ENTRY OF CONSENT JUDGMENT Plaintiff's Motion for Entry of Consent Judgment is GRANTED. The Court finds the Consent Judgment ("CJ") meets the criteria established by Health & Safety Code section 25249.7, in that: (A) the standards required by the CJ complies with Health & Safety Code sections 25249.6 and 25249.10(c); (B) the warning required by the CJ is clear and reasonable in compliance with Healt...

Excerpt: ...e demurrer filed by TCS because it has never paid taxes to the Franchise Tax Board is not supported by factual evidence that it has failed to do so or that it is required to do so in order to defend against Plaintiff's complaint. The demurrer by Defendants Saybrook and TCS to the First Cause of Action for Breach of Contract, Count One, is SUSTAINED WITH LEAVE TO AMEND for failure to state a cause of action and uncertainty. Plaintiff's First Count...

Excerpt: ...s ("BSI"), Ventures Trust 2013- I-H-R (the "Trust") and Fay Servicing, LLC ("Fay") have all been loan servicers of the mortgage loan (the "Loan") for a property purchased by Plaintiffs Steven Davis and Drake Alhambra, LLC ("Drake") in 1998. Bank of America ("BofA"), also a defendant in this action, was the original servicer. The loan was thereafter transferred to the Trust, BSI and Fay in that order. During the time BofA was servicing the Loan, a...

Excerpt: ...er 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 litigation." (CCP § 36(a).) Notably, "[t]he standard under subdivision (a), ..., includes no requirement of a doc...

Excerpt: ...tered into a contract with Amazon. The contract has a choice of law provision designating Washington state as the law. Amazon is based in Washington state, so there is a substantial relationship to a Washington state, so the court will give effect to the choice of law provision. (Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 465.) (See also Brinkley v. Monterey Financial Services, Inc. (2015) 242 Cal.App.4th 314, 327-329.) The claim...

Excerpt: ...ettlement agreement. Plaintiffs do not submit a copy of the document or documents constituting the parties' alleged settlement agreement. Without a copy of the final settlement agreement, the Court is unable to determine whether the parties have entered into an enforceable settlement agreement and cannot enter a judgment in the appropriate amount. Plaintiffs' declaration of counsel states that on 11/20/2017, Plaintiffs and Defendant reached an or...

Excerpt: ..."CPRA"). (Gov. Code §§ 6250 et seq.) Petitioner has been the subject of three investigations under UC's Sexual Violence and Sexual Harassment Policy, each following the complaint of another UC Berkeley graduate student. Following the third, petitioner requested that he be permitted to inspect the "investigation file," per University policy, and all notes, drafts, and other evidence not relied on in the final investigation report. In response, t...

Excerpt: ... of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. Defendant is FURTHER ORDERED to provide further verified responses, without objection except for privilege or attorney work product, and, as appropriate, to produce additional documents responsive to Plaintiff's Requests for Production of Documents Nos. 13, and 20-23. If a requested document does not exist or otherwise canno...

Excerpt: ... Collision employees as well as their timecards, wage statements, invoices, pay slips, and reimbursement receipts. On June 13, 2019, the Court denied Plaintiffs Isas and Zarate's Motion to Compel Defendant to disclose the employees' contact information when it issued its ruling on the Motion to Compel Further Responses to Special Interrogatories. On April 18, 2019, the Court granted in part Defendant's Motion for Protective Order after Plaintiffs...

Excerpt: ...Cotter. On October 31, 2019, Ontrac noticed the deposition of H&H's PMK for December 15, 2019. At the time, this matter was set for trial on December 16, 2019 and the date for discovery cut-off was November 16, 2019. The deposition was thus timely noticed for a date prior to the discovery cut-off. After the initial deposition notice was served, counsel for Ontrac and Erin Murphy, an attorney from Farmer Case & Fedor (one of the two firms represen...

Excerpt: ...ry sought is relevant to defendant CertainTeed Corp.'s potential liability herein. (See Rawnsley v. Sup.Ct. (1986) 183 Cal.App.3d 86, 91.) Further, Plaintiffs should be prepared to address what remedies will be available to them if they are allowed to depose CertainTeed now regarding the recent asset transfers that will not be available to them if Plaintiffs are forced to wait until the completion of trial to conduct this discovery. The Court not...

Excerpt: ...ance transporting Leobardo Lopez to the hospital struck another vehicle at or near the intersection of Telegraph Avenue and 45th Street, in Berkeley, 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 Court refers to the D...

Excerpt: ...h respect to punitive damages. Decedent Kenneth Dale ("Decedent") died of mesothelioma allegedly caused in part by breathing in asbestos-containing dust produced by removal of Durametallic's packing and gaskets on the USS Cavalier, a Navy ship on which Decedent served from February 1965 through November 1967. There is no evidence in the record for the MSA that Decedent was exposed to respirable asbestos from one of Defendant's or Durametallic's p...

Excerpt: ...tion is not at issue in this MSA. Motion for Summary Adjudication on Third Cause of Action for "False Representation Under Restatement of Torts § 402B. California case law recognizes a cause of action for a seller's false representations pursuant to §402B of the Restatement 2nd of Torts. (Westlye v. Look Sports Inc. (1993) 17 Cal.App.4th 1715, 1750-1751, citing Hauter v. Zogarts (1975) 14 Cal.3d 104, 111.) § 402B provides: "One engaged in the ...

Excerpt: ...ated to the substantive anti-SLAPP arguments, but refraining to award of fees or costs at that time for procedural reasons].) Accordingly, pursuant to section 425.16(c), Defendants are entitled to recover fees and costs from Plaintiffs as the prevailing parties. The Court has reviewed the evidence provided supporting Defendants' request for fees and costs, which covers the time period between March 18, 2019 and November 13, 2019, and finds the am...

Excerpt: ...n to extend the time to demur in furtherance of justice and on any proper terms. (Cal. Code Civ. Proc. § 473(a)(1).) Good cause for the extension must be shown, and the extension may not exceed "an additional" 30 days without the adverse party's consent. (Cal. Code Civ. Proc. § 1054(a).) Plaintiff filed his Complaint for breach of contract and waste on 6/26/19. Defendant filed no responsive pleading until this Demurrer was filed on 11/7/19. An ...

Excerpt: ...ct that Cross-Complainant implicitly and inferentially admits to at various points within the FAXC. (See, e.g., FAXC, ¶ 15). The FAXC's second cause of action for negligence fails because Cross-Complainant does not have standing to bring this claim against Champion Mortgage, as Cross- Complainant is not a borrower under the loan at issue. (See FAXC, ¶ 4.) Further, Cross-Complainant has not satisfactorily established there is a legal duty for a ...

Excerpt: ...t in obtaining a loan from HPF. (See Cross-Complaint, paragraphs 23-27 and 47.) This purported representation was not false, because HPF did in fact extend the loan to Shivers. Likewise, Shivers fail to show how HPF's purported representation that HPF's loan would pay off the Ocwen loan, with any remaining proceeds going to Shivers, was false. (See Cross-Complaint, paragraph 91.) Moreover, Shivers cannot claim that they were not advised of the ob...

Excerpt: ...nia (the "Property") until a trial in the underlying matters pending before this Court can be properly heard is DENIED. In deciding whether to issue a preliminary injunction, the Court weighs two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits; and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. The Court's determination is guided by a mix of the po...

Excerpt: ... Plaintiffs to file supplemental papers addressing the outstanding specific issues identified below at least five (5) court days prior to the continued 1/29/2020 hearing date. The parties will note that much of the following constitutes primary analysis of the moving papers and the Settlement Agreement, much of which does not require revision. Plaintiff's Second Amended Complaint alleges claims for unpaid wages, failure to provide meal and rest p...

Excerpt: ...rprise, and/or excusable neglect. Specifically, Plaintiff's evidence shows that neither he nor his counsel had any reason to suspect that Defendant Anna Gee was acting within the course and scope of her employment at the time of Plaintiff's accident until they were informed of this possibility on March 6, 2019. Plaintiff presented his government claim to the County on April 3, 2019 and his application to present a late claim on July 12, 2019, app...

Excerpt: ... Carlos Sheet Metal. Mr. Brazil was a sheet metal worker, who among other things, removed and replaced old Carrier and related brand furnaces, which Plaintiffs allege exposed Mr. Brazil to respirable asbestos fibers. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as throu...

Excerpt: ...because it was filed more than 35 days after October 15, 2019 when this action was filed. However, as Plaintiff mailed the summons and complaint to Defendants via first-class mail on October 15, 2019, the Court finds that this Demurrer is timely as it was filed on November 21, 2019 which is within 40 days of October 15, 2019 on or before November 22, 2019. (Cal. Civ. Proc. Code § 415.20 ["When service is effected by leaving a copy of the summons...

Excerpt: ...he Colemans only); 4) nuisance; 5) intentional infliction of emotional distress; 6) tenant harassment in violation of the Oakland Rent Ordinance section 8.22.600; 7) violation of the Oakland Tenant Move Out Agreement Ordinance; 8) failure to provide reasonable accommodation in violation of the Fair Employment and Housing Act (as against the Colemans, Bozeman and McKeiver only). The FAC alleges that the Colemans, Quincy Bozeman and Forrest McKeive...

Excerpt: ... must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "[I]f a plaintiff pleads a claim that fails to state a cause of action, a demurrer is properly sustained[.]" (Boxer v. City of Beverly Hills (2016) 246 Cal. App. 4th 1212, 1225.) "Where the complaint is defective, '[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend ...

Excerpt: ...he Court on noticed motion pursuant to Civil Code section 1794(d). The court agrees with both parties that the lodestar method of calculating Plaintiff's recoverable attorney's fees must be used. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.) Under the lodestar method, the award of attorney's fees is calculated based on the reasonable hourly rate for Plaintiff's counsel multiplied by the hours th...

Excerpt: ...a Cross Complaint, alleging causes of action for violation of the Consumer Legal Remedies Act and violations of the California Business and Professions Code. In her Cross-Complaint, Bryant sought public injunctive relief. (First Amended Cross Complaint ("FACC") at p. 21, ¶ 5.) On 4/17/18, Gimbal filed a motion to compel arbitration and to stay this action. This Court granted Gimbal's motion on 7/12/18 and compelled both Parties to submit "all of...

Excerpt: ...or "Fluor") regarding Plaintiffs' newly asserted punitive damages claims within twenty (20) days of electronic service. Further, the Court ORDERS each of Plaintiffs, upon timely service of a Notice of Further Deposition, to sit for further deposition regarding solely Plaintiff's newly asserted punitive damages claims, which depositions shall be completed no later than Friday, February 14, 2020. Plaintiffs allege asbestos personal injury causes of...

Excerpt: ... the date of this Order. The trial date is VACATED and a further case management conference is set for March 10, 2020 for trial setting. "A party against whom a cause of action has been asserted in a complaint or cross- complaint may file a cross-complaint setting forth . . . [a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in h...

Excerpt: ...ore 35 Special Interrogatories, Requests for Admissions, and Request for Production of Documents. On September 17, 2019, Defendants served Plaintiff with 116 Requests for Production of Documents, 112 Special Interrogatories, and 182 Requests for Admission, along with Form Interrogatory 17.1. The Special Interrogatories and Requests for Admissions included Declarations for Additional Discovery by Defendants' counsel, pursuant to Code of Civil Proc...

Excerpt: ...burden harass and annoy Tesla and the witness because the nonparty has no personal knowledge of the events at issue and will only serve to elicit inadmissible character evidence. "The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." Code Civ. Proc., § 2031.060, subd. (b).) In his opposition, Plaintiff ...

Excerpt: ...96, 107. Decedent Kenneth Dale ("Decedent") died of mesothelioma allegedly caused in part by breathing in asbestos-containing dust produced by brake parts and clutch assemblies he purchased from Kragen, Defendant's predecessor in interest, in Healdsburg, CA, which parts Decedent used for home auto repair. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show th...

Excerpt: ...ant to the California Labor Code Private Attorneys General Act ("PAGA"), Labor Code section 26999(1), (2). Plaintiff provides evidence that she served Defendants with a letter dated January 3, 2019 ("PAGA letter"), providing notice of alleged violations of Labor Code provisions with regard to Plaintiff, who was employed by Defendants as an resident apartment manager from February 3, 2018 to November 16, 2018. The letter also provides notice of vi...

Excerpt: ...fendants assert was a breach of her fiduciary obligations to the putative class. Plaintiff brought this action against Defendants on January 17, 2017 alleging various wage and hour violations. Shortly thereafter, on April 10, 2017, Plaintiff settled claims against AEG Management Oakland, LLC ("AEG"). Defendants contend AEG is a joint employer of Plaintiff along with Defendants. (Declaration of Michael R. Minguet ["Minguet Dec."], Ex. A.) The curr...

Excerpt: ...al injury as a result of Defendant's negligence. On 2/26/18, Plaintiff filed a proof of service of the summons and complaint. It is unclear from this POS on whom, where, when or how service was effected. The POS indicates both that Defendant was herself served at 727 Rosal Avenue in Oakland; and that a "disbarred atty. who files the Defendant Mrs. Smith's papers" was served, with no indication of where or how service occurred. On 9/11/18, Plainti...

Excerpt: ...naed Entities") is DENIED. Defendants' alternative motion for a protective order in relation to the Subpoenaed Entities is GRANTED IN PART. In GRANTING IN PART the request for a protective order, the Court limits the scope of the subject subpoenas. In doing so, the Court ORDERS THAT the Subpoenaed Entities are not required or permitted to respond to the following two requests made by Plaintiff, both of which are present in each of the subject sub...

Excerpt: ...t readily ascertainable. Plaintiff has indicated he is not seeking prejudgment interest from Defendants BWR and McKeiver, and would have so stipulated if Defendants had raised the issue through the meet and confer process. Accordingly, Defendants' motion to strike the prayer for prejudgment interest as to Defendants BWR and McKeiver only is GRANTED. Defendants next move to strike Plaintiff's prayer for emotional distress damages (FAC, Prayer for ...

Excerpt: ...hino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.) Although the court ultimately vacated the jury verdict, the court had previously denied the Defendant's motion for summary judgment and the jury found in favor of Plaintiff. Therefore, the court finds that the present case was not frivolous or without foundation when it was brought or litigated and Grants the motion to strike the memorandum of costs filed by Defendant, The Regents of ...

Excerpt: ... that the representations made by Wells Fargo regarding whether or not she was eligible for a HAMP loan, were false. Generally, in order to succeed on a theory of delayed discovery, the plaintiff must show that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period." Fox v. Ethicon Endo-Surgery, Inc....

Excerpt: ... on tract home projects in the 1960's and 1970's for developer KB. In their response to Defendant's Special Interrogatories No. 2, Plaintiffs provided a detailed description of the alleged conduct of Defendant's employee laborers who created airborne asbestos-laden dust by sweeping in Fred Brazil's immediate vicinity. (See Rippolone Dec. Exh. D at pp. 2:22-3:2.) These responses are sufficient to support a finding that KB has not shifted the burde...

Excerpt: ...arises out of the alleged breach of a commercial lease between tenant Hasan and landlord Stoneridge regarding retail space rented at the Stoneridge Shopping Center in Pleasanton. DEMURRER STANDARDS "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.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deeme...

Excerpt: ...ter than the close of business on Tuesday, January 7, 2010, Plaintiffs may serve by electronic transmission Special Interrogatories, Requests for Production of Documents, and a Notice of Deposition of Lockheed's Person Most Qualified ("PMQ") (CCP § 2025.230) with respect to information and documents tending to show whether the State of California has specific personal jurisdiction over Lockheed. Lockheed shall serve by electronic transmission re...

Excerpt: ...is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the unde...