Excerpt: ...iccinini Trust utd March 18, 2002 and Louis J. Giraudo, in his capacity as Trustee of the Robert M. Piccinini Trust ("Defendants"), but allowed Plaintiffs the opportunity to file a motion to reopen evidence regarding damages. At the hearing on Plaintiff's ex parte application, the court indicated it was interested in the question of whether the court should reopen evidence on the limited issue of whether the March 31, 2015 valuation of the Piccin...

Excerpt: ...on. Having considered the moving papers and the record on file in this matter, including evidence of Plaintiff's failure to obey the court's order of February 28, 2019, and for good cause shown, IT IS HEREBY ORDERED: 1. The Complaint filed by Plaintiff on June 26, 2018, is hereby STRICKEN and Plaintiff's affirmative action against Defendants is DISMISSED with prejudice. (See C.C.P. §§ 2030.290(c) and 2023.030(d)(1).) 2. Plaintiff and its counse...

Excerpt: ...une 14, 2019, Crossroads filed this renewed motion for summary adjudication pursuant to Code of Civil Procedure § 1008(b). The only "new" fact identified in the moving papers is that on May 20, 2019, Crossroads took the deposition of Brianne Pitchford, designated by Triangle as its person most qualified on some topic not disclosed in the moving papers. (See the Declaration of Nathan Verbiscar-Brown at paragraphs 34 and 47-48.) At her deposition,...

Excerpt: ... opposition. Further, the motion makes a sufficient showing for the requested relief. More specifically, the motion seeks reconsideration of the court's order of June 27, 2019, stating as follows: "The Request for Default Judgment is rejected and NOT ENTERED for the following reason(s): NO valid proof of service on file for service of Cross Complaint on Pacific Construction & Design[]. Appears to have been served by mail which is not proper servi...

Excerpt: ...ate facts sufficient to constitute a cause of action against it, for all the reasons discussed in the memorandum of points and authorities. (See C.C.P. § 438(c)(1)(B)(ii).) Such reasons include, without limitation the following. First, although the motion addresses the complaint designated as "Amended (Number): 3," filed on March 11, 2018, in fact the operative complaint appears to be the complaint designated as "Amended (Number): 1," filed on O...

Excerpt: ...al connection between the negligent conduct and the resulting injury" and the "actual loss or damage resulting from the professional's negligence." (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) As currently pleaded, the cause of action is deficient in at least some of the above respects. Preliminarily, the cause of action does not comply with CRC 2.112, subdivisions (2), (3) and (4), by stating its "nature," the party or parties asserting it, or the ...

Excerpt: ...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.) "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) 12...

Excerpt: ...o correct any defect has not been [previously] given."].) Plaintiff shall file an amended complaint no later than September 17, 2019. (See CRC, R. 3.1320(g).) "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.) "As ...

Excerpt: ..., 2019. Trial is currently set for November 12, 2019. The court may grant leave to a party who has engaged in a timely exchange of expert witness information to "do either or both of the following: (1) Augment that party's expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. (2) Amend that party's expert witness declaration with respect to the general substance of the ...

Excerpt: ...., Vanil, Inc., Vanmel, Inc., Vansh, Inc., Varris Management, Inc., Yadav, Inc., Yadav Enterprises, Inc. aka JIB Management, Inc.) and Anil Yadav (collectively, "Defendants" or "Settling Defendants"). The operative pleading is a Second Amended Class Action Complaint recently filed by stipulation of the parties. To protect the interests of absent class members, class action settlements must be reviewed and approved by the Court. (Duran v. Obesity ...

Excerpt: ...ries by unknown third parties due to their failure to control the crowd and ensure security of guests at the event, inadequate staffing, lack of competently trained staff, and sub-standard security. (FAC ¶¶ 20-23.) Plaintiffs seeks summary adjudication against sixteen affirmative defenses asserted by AEG: Second Affirmative Defense (Third Party Liability); Third Affirmative Defense (Statute of Limitations); Fourth Affirmative Defense (Fault of ...

Excerpt: ...cation as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owe...

Excerpt: ..."FAC") filed on October 17, 2018. The FAC pleads three causes of action. Defendant is named only under the first cause of action for professional negligence and the second cause of action for wrongful death. Defendant did not meet his initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 848-855.) Defendant did not negate the essential element of breach of the standard of care in the sense of entirely disproving ...

Excerpt: ...red televisions which Decedent allegedly serviced as a television repairman at some point in time between 1951 and 1956. (Def.'s Sep. Stmt. of Undisp. Mtr. Facts ["UMF"] Nos. 1-5.) Plaintiffs' operative First Amended Complaint ("FAC"), filed August 7, 2018, alleges three causes of action for negligence, strict liability, and conspiracy. Only the first two are alleged against Defendant. Defendant has moved for summary judgment and in the alternati...

Excerpt: ...h and Safety Code section 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $3,000.00 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health and Safety Code section 25249.7(b); and (E) and the allocation of any additional settlement payments to Plaintiff is in the public interest as set forth in Code of ...

Excerpt: ...e categories in ruling on the motion. A. Discovery Potentially Relevant to Punitive Damages 1. RFAs The motion is DENIED as to RFAs Nos. 1, 2 and 7-9. Plaintiff International Currency Technologies ("Plaintiff") objected that these RFAs are not reasonably calculated to lead to the discovery of admissible evidence, which the court finds to be a valid objection. The court already excluded evidence of the trademark application and registration based ...

Excerpt: ...n Williams ("Defendant") had not served any responses to these interrogatories, despite several reminders that the due date had passed, which resulted in his waiver of any objections to those interrogatories. (See C.C.P. § 2030.290(a).) In his opposition filed on August 14, 2019 (which is not accompanied by a proof of service), Defendant attaches verified responses to the interrogatories, containing objections and incomplete responses. Where res...

Excerpt: ... of documents on the basis of "private property." (See Dec. K. Greene, para. 8, Ex. C.) However, Ms. Jiang's purported objection did not conform to the requirement s of section 1985.3 and is of no specific legal effect. Further, Ms. Jiang rebuffed Alvernaz's attempts to meet and confer regarding the issue. (See Dec. K. Greene, para. 10.) Substantively, the Court finds the right to privacy is not absolute, the documents sought by the subpoenas are...

Excerpt: ...porting memorandum sufficiently supplies such details such that Plaintiff has sufficient notice of the requested relief and the matter is properly before the court. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Further, though the memorandum has a typographical error in referring to the applicable statute, C.C.P. § 2024.050, the first two paragraphs of the argument section identify and quote from that statute, which is sufficient to ad...

Excerpt: ...dants have requested to join in this motion: Kelly-Moore Paint Company, Inc.; Caterpillar, Inc.; Daimler Trucks North America LLC; Detroit Diesel Corporation; Ford Motor Company; Mack Trucks, Inc.; Navistar, Inc.; Borgwarner Morse TEC LLC; The Pep Boys - Manny Moe & Jack of California; Honeywell International, Inc.; Transwest Truck Center LLC; Cummins Inc.; DCo LLC; BWDAC, Inc.; Inland Kenworth, Inc.; PACCAR, Inc.; 3M Company; and Pneumo Abex LLC...

Excerpt: ... insurance companies assigned White 50% fault and denied her claims, resulting in physical, emotional, and financial harm to White. Keeton appears by general demurrer and denies that the Complaint is sufficient to state a cause of action for breach of contract. White has not filed papers in opposition. For the reasons stated below, Keeton's demurrer is SUSTAINED WITH LEAVE TO AMEND. PROCEDURAL MATTERS White's appearance on her own behalf does not...

Excerpt: ...ended Complaint, including the additional specificity requested by the court when sustaining the last demurrer to the two causes of action for Violation of Civil Code section 2923.5 and 2924.17, that Plaintiff has not adequately alleged that there was a violation as defined under 2923.5(e). Plaintiff's allegations state that although she contacted Defendant and they did not respond in a meaningful way to constitute due diligence. (First Amended C...

Excerpt: ...s, the hourly fees plus a 0.5 enhancement). Defendants oppose, arguing that Yeh's attorney's hourly rate is unreasonable, that this litigation was unnecessary, that certain fees were not reasonably necessary to resolution of this case, and that fees incurred after Plaintiff accepted the Section 998 offer are not recoverable under the terms of that offer. The Court applies the "lodestar" methodology when calculating attorneys' fees under the Song-...

Excerpt: ...where 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." (C.C.P. § 438(c)(1).) Although Defendant filed a general denial to the complaint on February 22, 2019, the court issued an order on June 21, 2019, stating that "the matters set forth in the Requests for Admissions, Set No. 1, served on February 28, 2...

Excerpt: ...ent occurred, and there was no overhead street lighting at that location as a result of the construction project. (See Plaintiff's Additional Facts ("AF") Nos. 1-5 and the evidence cited in support.) Plaintiff had to maneuver his bicycle to avoid being hit by a car, and in doing so, Plaintiff hit a partially-filled trench and was thrown from his bicycle. (See AF Nos. 6-8 and the evidence in support.) Prior to the construction project, Portola Ave...

Excerpt: ...of Civil Procedure ("C.C.P.") section 391(b), subdivisions (1), (2) and (3). First, the records of which the court takes judicial notice show that Plaintiff, in propria persona, has filed and maintained at least five litigations in the last seven years that have been finally determined adversely to her. (See C.C.P. § 391.1(b)(1); Request for Judicial Notice ["RJN"] filed on June 28, 2019, Exhs. D through V, which is granted; Tokerud v. Capitolba...

Excerpt: ...is tried to a jury regarding liability and is tried to a judge regarding the amount of penalties. Nationwide Biweekly Admin., Inc. v. Superior Court (2018) 24 Cal. App. 5th 438, recently analyzed whether UCL claims for statutory penalties should be determined by a jury. The appellate court found that while the "gist" of statutory causes of action are legal-"thereby giving rise to a right to jury trial"-"following the approach taken by the United ...

Excerpt: ...edical Board of California website indicating that six doctors who were witnesses to Plaintiff's medical treatment at Sutter have offices located in Santa Rosa in Sonoma County. However, Sutter submits no evidence demonstrating where those doctors live. Absent such evidence, the Court cannot presume that it would be inconvenient for those doctors to testify at trial in this case in Alameda County. Sutter's argument that it cannot contact those do...

Excerpt: ...f records for: (1) Comcast Corporation ("Comcast"); (2) Pleasanton Garbage Service, Inc. ("PGS"); and (3) Acorn Onsite, Inc. ("Acorn"). (Decl. of Allyssa Villanueva, Exhs. C, D and E.) The Subpoenas to PGS and Comcast seek (in essence) all billing statements and other records pertaining to Kim Johnson from January 1, 2015 to the present. (Id., Exhs. C and E.) The Subpoena to Acorn seeks: "All records regarding the subject property located at 2323...

Excerpt: ...4) Washington Hospital, "Billing DP." (Decl. of William M. Artigliee, Exh. 1.) The Subpoenas were served on behalf of Defendant Fremont Healthcare Operating Company LP, dba Fremont Healthcare Center ("Fremont Healthcare") on or about June 21, 2019. (Id.) All four Subpoenas seek records pertaining to Plaintiff John Ellwanger ("Decedent"), who died on December 8, 2017 (as alleged in the consolidated case). The motion is based on arguments that the ...

Excerpt: ...as addressed in this motion on an item-by-item basis. (See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435-1436, 1439; Manzetti v. Superior Court (1993) 21 Cal.App.4th 373, 380, fn.8.) The motion seeks to quash seven Deposition Subpoenas for Production of Business Records ("Subpoenas") served on or about June 24 or June 27, 2019 by Defendants Kilkare Woods Association, Inc. et al. ("Defendants"). This is the third of three motions to ...

Excerpt: ...F Oakland location, which is operated by Defendant Lake Merritt Fitness, Inc. In his First Amended Complaint, Howell alleges that Fitness SF pays its trainers a percentage basis commission based on its billing to clients and fails to pay its trainers for time spent working without clients, fails to provide off-duty meal and rest periods, fails to provide accurate wage statements, and does not indemnify trainers for their personal cell phone expen...

Excerpt: ...rove into the rear of their vehicle and then attempted to flee the scene. Defendant does not dispute Plaintiff's description of the accident in the Complaint, but she argues that she is not liable to Plaintiffs as a matter of law because she lost consciousness due to her diabetes. See Waters v. Pacific Coast Dairy, Inc. (1942) 55 Cal.App.2d 789, 792. Defendant's motion is denied because she has not presented any competent evidence to establish th...

Excerpt: ...nt 520. The motion seeks summary adjudication as to nine of the twenty-one affirmative defenses included in the "Answer to Plaintiff's Complaint for Wrongful Death (Case Number HG18929026)" filed on February 4, 2019. The answer is directed to the "Complaint for Damages" filed by Dollarhide, along with co-plaintiff Marcia Ellwanger, on November 19, 2018, in Case No. HG18929026, which was consolidated with Case No. RG18899177 on January 30, 2019. T...

Excerpt: ...Shea and Cummings to the First Cause of Action, entitled "Breach of Fiduciary Duties - Improper Self-Dealing," pursuant to CCP § 430.10(e), is SUSTAINED WITH LEAVE TO AMEND. Defendants have established that Delaware and not California law applies to Plaintiff's breach of fiduciary duty claim against the PDI directors. See Corp. Code § 2116. The directors owed a fiduciary duty to the common shareholders and not the owners of preferred shares of ...

Excerpt: ...emur to Count One, which asserts liability against the City based on Government Code section 835. As to Counts Two and Three, Defendants' demurrer is sustained for all the reasons discussed in the demurrer and supporting memorandum, which cites legal authority supporting Defendants' arguments. Without limitation of the foregoing, the deficiencies in those "counts," as pleaded, include the following. First, Counts Two and Three fail to identify a ...

Excerpt: ...state a cause of action, namely: . The first cause of action for fraud by concealment; . The second of action for breach of the implied covenant of good faith and fair dealing; . The third cause of action for wrongful discharge in violation of public policy; . The fourth cause of action for violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO") (18 U.S.C. § 1961); . The tenth cause of action for retaliation under Labor C...

Excerpt: ... return her personal property in accordance with Civil Code sections 1965, 1980 through 1991, C.C.P. §§ 715.010 through 715.030 and 1174, and/or the various notices set forth as Exhibits A, B-1, B-2, C and D to the supplemental opposition filed on August 8, 2019. As currently pleaded, the cause of action is deficient, including because it alleges facts that contradict those in Plaintiff's prior pleadings, in the exhibits to the SAC, and in the ...

Excerpt: ...omotive Imports of CA, LLC ("Plaintiff"). A fraud claim must be pled with particularity, including who, when, where, to whom, and by what means any misrepresentations were tendered. (See, e.g., Robinson Helicopter Co. Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) Plaintiff fails to allege who made the alleged misrepresentations on which it relied, when, and by what means. (See First Amended Complaint, paragraph 26.) In addition, as the First Am...

Excerpt: ... which is set forth in Triangle's Separate Statement. As to privilege log documents nos. 2-5, Triangle's motion is GRANTED. The Court determines that Crossroads has waived any attorney-client privilege or attorney work product privilege as to those documents by disclosing a significant part of the communications to Triangle. (See Evidence Code section 912(a); see also Jones v. Superior Court (1981) 119 Cal.App.3d 534-547 and National Steel Produc...

Excerpt: ...nd that is owned by Matthew, and on which Samuel resided at the time of the incident. Garcia, a professional but unlicensed landscaper who was hired by Samuel to cut branches from a redwood tree on the premises, was working on that job when a branch on which he was standing broke, causing Garcia to fall and injure himself. (See, generally, Defendants' Separate Statement Facts ("SSF") Nos. 11-33 and the evidence cited in support.) Plaintiffs' evid...

Excerpt: ...cation as to each of the First through Eighth Causes of Action therein. Because summary judgment may be granted only if Defendants are entitled to judgment as to each and every cause of action (see C.C.P. § 437c(c)), the court proceeds by addressing the motion for summary adjudication as to each such cause of action. A. First Cause of Action The motion for summary adjudication as to the First Cause of Action is GRANTED. This cause of action alle...

Excerpt: ...s asserted against Nakidi in this lawsuit and that Plaintiff has not made a sufficient showing that Nakidi waived the right to arbitrate the agreement or that "there is a possibility of conflicting rulings on a common issue of law or fact" if the court orders arbitration of the claims against Nakidi but not the claims against Defendant Teamsoft Technologies, LLC ("Teamsoft") in this action. (See C.C.P. § 1281.2; 9 U.S.C. § 2.) A. Existence and ...

Excerpt: ...s the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation...

Excerpt: ...ction is OVERRULED. A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court give...

Excerpt: ... with WSC that required a contractor's license and that MPI did not have such a license. (FACC, ¶¶ 15-17.) WSC alleges that, pursuant to Business and Professions Code section 7031(b), WSC is thus entitled to recover all compensation paid to MPI as an unlicensed contractor. (Id., ¶ 18.) MPI's demurrer is based on the ground that this was a claim that was required to be brought as a compulsory cross-complaint in the prior action entitled Masterp...

Excerpt: ...e granted. (See CCP sec. 430.10(e); 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."].) Plaintiff shall file an amended complaint no later than September 10, 2019. (See CRC, R. 3.1320(g).) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018)...

Excerpt: ...exchange insurance information with the other driver, and then falsified the collision report by attributing fault to plaintiff. Plaintiff alleges her rebuttal was investigated by the CHP but ultimately denied, and alleges that the CSAA insurance exchange denied her insurance claim in reliance on the report. Plaintiff seeks monetary damages against the defendants. Defendants demur to all causes of action on the grounds that plaintiff lacks standi...

Excerpt: ...act. The allegations of the FAC reveal that the complaint might well be barred because the alleged oral contract may constitute mortgage fraud. That said, the allegations in the FAC do not necessarily establish that the oral contract was definitively mortgage fraud and therefore barred as a matter of law. (See CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) The FAC did not expressly or impliedly unequivocally admit that t...

Excerpt: ...prove a settlement agreement"].) California follows a two-stage procedure for court approval: first, the Court reviews the form of the terms of the settlement and form of settlement notice to the class and provides or denies preliminary approval; later, the Court considers objections by class members and grants or denies final approval. (Cal. Rules of Court, rule 3.769.) When no class has been certified, as is the case here, the Court must determ...

Excerpt: ...s against respondent The Regents of the University of California ("Respondent"). On October 3, 2018, the Court granted the Regents' Motion for Judgment on the Pleadings as to Count III (alleging equitable estoppel), and so Counts I, II, IV, V, VI, and VII remain operative. But, Petitioners only gave notice of a motion for summary judgment on Counts I and V. Petitioners needed to address Counts II, IV, VI, and VII. Petitioners did not give notice ...

Excerpt: ...responses on May 3, 2019, and amended supplemental responses on July 8, 2019. In all three sets of responses, the responses to Nos. 26 through 34 contained only objections and no agreement to produce any responsive documents. (Decl. of Thomas Spielbauer, ¶¶ 3-14 and Exhs. 2, 4 and 7.) On July 19, 2019, Plaintiff sent a "meet and confer" letter as to asserted deficiencies in the amended supplemental responses. Ocwen did not respond to that lette...

Excerpt: ...responses on May 3, 2019, and amended supplemental responses on July 8, 2019. In all three sets of responses, the responses to Nos. 26 through 34 contained only objections and no agreement to produce any responsive documents. (Decl. of Thomas Spielbauer, ¶¶ 3-14 and Exhs. 2, 4 and 7.) On July 19, 2019, Plaintiff sent a "meet and confer" letter as to asserted deficiencies in the amended supplemental responses. Ocwen did not respond to that lette...

Excerpt: ... on their contention that Defendant's vicious dog, "King," attached Lee Brannon in 2016 when he visited Defendant's property located at 785 Hampton Road, in Hayward, to conduct a check on parolee Luis Hidalgo. Defendant has requested the Department, Lee Brannon's employer, to produce documents covered by Penal Code §§ 832.5 and 832.7. Plaintiff did not oppose the request. The Department, however, contends in its opposition that Defendant's atto...

Excerpt: ...ode of Civil Procedure section 1032(a)(4) provides that, for the purposes of costs under the section, a prevailing party "includes the party with a net monetary recovery, a defendant 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." The prevailing party for an award of costs under section 10...

Excerpt: ...pplicable theory. (See Easton v. Superior Court (1970) 12 Cal.App.3d 243, 245-246; Sequoia Pine Mills, Inc. v. Superior Court (1968) 258 Cal.App.2d 65, 67.) "[I]n the absence of an affirmative showing to the contrary, the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action." (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d...

Excerpt: ...h v. White Corporation (2017) 13 Cal.App.5th 1086. The motion does not comply with C.C.P. § 437c(b)(1), which requires a "separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." The failure to comply with this requirement "may in the court's discretion constitute a sufficient ground for...

Excerpt: ...t customer service in competition for insurance customers. Colony takes reasonable steps to maintain the confidentiality of these guidelines and may suffer unnecessary competitive harm if they were disclosed to the public or competitors. The Court finds that the claim handling guidelines submitted in support of Plaintiffs' opposition papers are confidential business information in which Colony has a legitimate and overriding privacy interest that...

Excerpt: ...leave, he received a letter informing him that his store was being restructured and that his position was to be eliminated on the same day he was due to return from leave. Walmart has answered by general denial. Bieker demurs. Of the Complaint's eleven causes of action, Castro asserts only two against Bieker: the third cause of action (for workplace harassment on the basis of age and disability), and the tenth cause of action for intentional or n...

Excerpt: ...the high evidentiary burden that Plaintiff will bear in seeking to establish that Defendant acted with "oppression" or "malice" within the meaning of Civil Code section 3294(c), the court does not find Plaintiff's allegations in this regard to be so "irrelevant, false, or improper" that it would be appropriate to strike them from the complaint at the pleading stage. (Cf. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 ["The stricken language...

Excerpt: ...loyer will show that plaintiff lied on her application for employment at defendant. The court considers whether the discovery sought is relevant, is privileged or protected, or unduly burdensome. RELEVANCE The testimony sought is relevant to the credibility of plaintiff. Defendant asserts that the deposition testimony is relevant because it will reveal that plaintiff made false statements in his/her applications for prior employment. Plaintiff is...

Excerpt: ...y 26, 2019, that requires the "income and accumulations of income for each of the three properties" to be "held by the property managers and not distributed without prior order of the Court or written agreement of the parties and their attorneys." (See Decl. of Edward Ngow, Exh. 2, ¶ 4.) Defendant seeks to restore "50/50 monthly distributions [of such income] to the parties through the conclusion of this matter," on the ground that she is a "sin...

Excerpt: ...hearing date for the motion. The motion is therefore timely and the court will consider it on its merits. The court grants the request for a site inspection of 1910-12 East 20th Street, Oakland, California. However, the inspection shall be limited to a non-intrusive walk through of the property with a real estate professional. Plaintiff or Plaintiffs agents may not inspect the personal items at the property, especially any personal property conta...

Excerpt: ...orm. Both Moneygram and plaintiff rely on California law. The agreement states below the arbitration clause that it is governed by Minnesota law. Both parties have waived any argument that Minnesota law applies. PROCEDURAL UNCONSCIONABILITY Plaintiff argues that the arbitration agreement is procedurally unconscionable on several grounds. The agreement is in 6 point font. This is an indication that it is procedurally unconscionable. California sta...

Excerpt: ... of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hos...

Excerpt: ...§ 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985)...

Excerpt: ...se of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City H...

Excerpt: ...er is directed only to the portion of the cause of action alleging age discrimination. "A demurrer does not lie to a portion of a cause of action." (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163.) Second, the demurrer is based on the argument that Plaintiff has not sufficiently alleged that she was "replaced by a substantially younger employee with equal or inferi...

Excerpt: ...d Piedmont Gardens SNF. Each of the three causes of action is apparently alleged against each of the three named defendants. However, nowhere in the First Amended Complaint does Plaintiff allege what Falck did, or did not do, that led to Plaintiff suing Falck. The Court infers from the briefs filed in support of and in opposition to this demurrer that Falck operates a medical transportation services company and was involved in transporting Plaint...

Excerpt: ... Each of the three causes of action is apparently alleged against each of the three named defendants. Plaintiff's claims against the Hospital apparently arise from some unspecified action occurring on September 6, 2016, when unspecified Defendants (presumably including the Hospital) "discharged, transferred, loaded, secured, transported, monitored, unloaded and assessed" Plaintiff during his transfer from the Hospital to Piedmont Gardens. This va...

Excerpt: ...leges facts sufficient to state a cause of action or discloses a complete defense." (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 reasonable interpretation, reading it as a whole and its parts in their context." (Goncharov v. Uber ...

Excerpt: ...g by specifying the acts or omissions of a representative of FPI (as distinguished from the various other defendants) that forms the basis of the cause of action and not simply referring to acts or omissions of "defendants" in the aggregate. (See, e.g., Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 763.) A cause of action for violation of Business & Professions Code section 17200...

Excerpt: ...].) Plaintiff shall file an amended complaint no later than September 5, 2019. (See CRC, R. 3.1320(g).) "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.) "As a general rule in testing a pleading against a demurrer...

Excerpt: ..., that (1) he was a member of a protected class, (2) he was qualified for the position he sought or competently performing the position he held; (3) he suffered an adverse employment action, and (3) some circumstance suggesting a discriminatory motive. (See, e.g. Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) Assuming arguendo that Plaintiff has submitted evidence as to elements (1)-(3) of his claim, supra, he has not submitted admissi...

Excerpt: ...rocedural history of this case. Defendants filed several Demurrers and Motions to Strike Plaintiffs' Complaint and First Amended Complaint. The Court recently issued its order directing the Clerk of the Court to file the Second Amended Complaint nunc pro tunc as of March 23, 2019. The Court denies the Motion for Summary Judgment because Plaintiffs and Defendant failed to comply with the requirements to have the decedent Amir Zarsange's medical re...

Excerpt: ...produced to Bautista's counsel until April 1, 2019. However, that document does not change the result of the Court's ruling on Bautista's prior motion for summary judgment, which was denied on November 29, 2018. It is not reasonably disputed that Bautista sold the subject property to Cindy Kwong and Tony Wong (in their capacities as Trustees of the Wong/Kwong Family Trust, collectively "Kwong") on October 23, 2015, over a year before decedent's d...

Excerpt: ...fendants caused harm to Plaintiffs through their willful failure to remedy the aforementioned defective conditions," and the other allegations in paragraphs 101 through 105, are conclusory and insufficient to support punitive damages if intended to apply to FPI along with the other defendants. Plaintiffs have not included specific factual allegations as to conduct by agents or employees of FPI, as distinguished from those of the other defendants,...

Excerpt: ...arate Statement of Facts ("SSF") Nos. 7-8.) Plaintiff's claim against Grubb is premised on Grubb's alleged failure to ensure that appropriate carbon monoxide detectors were properly installed on the subject property. (See SSF No. 16.) As a result of that alleged failure, Plaintiff's decedent, who was a tenant of Kwong, died of carbon monoxide poisoning. (See SSF Nos. 1-4 and 9-14.) The Court determines that as a matter of law under the facts of t...

Excerpt: ...and that these breaches of duty allowed her former husband Todd Stempien to withdraw large sums of money from the couple's joint account. In 2011, after Plaintiff inherited approximately $430,000.00 from her late father's estate, she and her former husband were advised to put the money inherited into an investment account held by "Stempien Family 2009 Trust." Plaintiff claims that Tim Millar never advised her that she had the option of having the...

Excerpt: ... age. Darden and co-defendant Olive Garden Holdings, LLC jointly move for an order compelling Martinez to submit to arbitration. For the reasons discussed below, the motion is GRANTED. LEGAL STANDARDS The Federal Arbitration Act ("FAA") (9 U.S.C. §§ 1 et seq.) embodies a "liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary." (Moses H. Cone Memorial Hosp. v. Mercury...

Excerpt: ...hout "evidence regarding the nature of his participation in the action, including a description of his specific actions and the amount to time he committed to the prosecution of the case." A Plaintiff requesting an incentive award must provide evidence regarding the nature of his participation in the action, including a description of his specific actions and the amount to time he committed to the prosecution of the case. (Clark v. American Resid...

Excerpt: ...uiet Title, Fourth Cause of Action for Cancellation of Instrument, and Ninth Cause of Action for Violation of Bus. & Prof. Code § 17200 et seq., is SUSTAINED WITH LEAVE TO AMEND. Although it does not conclude that Defendant is a bona fide purchaser for value ("BFP") as a matter of law, the Court does agree with Defendant's assertion that Plaintiffs failed to plead sufficient facts as to Breckenridge Property Fund 2016 LLC to state a valid claim....

Excerpt: ...'s prior owner, Edmund Chute, who then sold the property to Gorlick. Chute hired Dorgan to make extensive electrical improvements to the property to prepare it for use as an indoor cannabis cultivation facility. The FAC also asserts a right to recover the value of Dorgan's work in quantum meruit. Gorlick appears by general demurrer and requests that the Court take judicial notice of certain documents. In his demurrer, Gorlick objects that the FAC...

Excerpt: ...own, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) para. 8:1256, p. 8G-1.) As stated in Cembrook v. Superior Court, (1961) 56 Cal. 2d 423, and International Harvester Co. v. Superior Court, (1969) 273 Cal.App.2d 652, while "most of the discovery procedures are primarily to assist counsel to prepare for trial . . . [RFAs] are aimed primarily at setting at rest a triable issue so it will not have to be tried. " (Int'l Ha...

Excerpt: ...me at Ira Jenkins Recreation Center ("Recreation Center"), when Defendant Emarius M. McCowan ("McCowan") acted in an intentionally aggressive and hostile manner toward Plaintiffs and others in the game. As a result, employees of the City closed the Recreation Center and forced Plaintiffs to leave in the company of McCowan. The employees also locked the doors of the Recreation Center to prevent Plaintiffs from seeking shelter or safety inside. Onc...

Excerpt: ...Motion was untimely as to fees incurred "up to and including the rendition of judgment in the trial court" because it was not "served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case." (Cal. Rules of Court, rule 3.1702(b)(1).) Rule 3.1702's deadlines are mandatory. (See Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1725-1726.) On April 5, 2016, judgment was entered in favo...

Excerpt: ...ose individuals who worked for Defendants in the State of California as a delivery driver or other similar job titles at any time on or after the date that is four years prior to when the Complaint was filed. Since the original Complaint was filed on May 5, 2017, this definition would encompass everyone who worked for Defendants at any time from May 5, 2013 through May 5, 2017. Plaintiff also seeks certification of a terminated subclass defined a...

Excerpt: ...n order. Gebre proceeded to trial on November 14, 2018, separate from the remainder of the consolidated cases. On May 1, 2019, in Gebre, the Court issued a Statement of Decision after trial ruling in Defendants' favor. The Court finds that entering judgment now in Gebre would not create the possibility of conflicting judgments with the consolidated cases. The issues to be determined at trial in the consolidated cases pertain to factual and legal ...

Excerpt: ...n order. Gebre proceeded to trial on November 14, 2018, separate from the remainder of the consolidated cases. On May 1, 2019, in Gebre, the Court issued a Statement of Decision after trial ruling in Defendants' favor. The Court finds that entering judgment now in Gebre would not create the possibility of conflicting judgments with the consolidated cases. The issues to be determined at trial in the consolidated cases pertain to factual and legal ...

Excerpt: ... to pursue a judgment against in this Court against Intellilum. (See In re Beeney (1992) 142 B.R. 360, 362-363.) As Intellilum has appeared in this action and had its previous default set aside, it is reasonable to believe Plaintiff might need to conduct some limited discovery to prepare evidence for trial, a motion for summary judgment, or some other procedural device to seek judgment against Intellilum. Accordingly, a request for discovery agai...

Excerpt: ...ase entitled, Princess Pope v. Essex Property Trust, et al. (Case No. RG13689355). The underlying case is also assigned for all purposes to Department 517. The Court takes notice of the proceedings in that case. Defendants American Bankers Insurance Company of Florida and Assurant, Inc. are parties to the underlying case. Defendants Tittmann, Valdespino and Hunkins represented the entities in the underlying case. Plaintiff's claims against Defend...

Excerpt: ...sby, d.b.a. Tech Express ("Plaintiff" or "Tech Express") on April 19, 2019: (1) to American Express ("AmEx"), in New York, and (2) to PayPal Inc. ("PayPal"), in San Jose. (See Decl. of Holiday D. Powell, Exhs. 3 and 4.) As noted in the reply memorandum filed on August 6, 2019, the motion was timely served on Plaintiff and Plaintiff did not file any opposition by July 31, 2019, the due date per C.C.P. § 1005. Instead, on August 8, 2019, eight day...

Excerpt: ...(Clauson v. Superior Court (1998) 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)....

Excerpt: ...a consequence of Lowe's alleged failure to respond to CSAA's arbitration demand. The court has reviewed Terzian v. California Casualty Indemnity Exchange (1974) 42 Cal.App.3d, 942 cited by CSAA, and does not find the case to be instructive on this point. CSAA shall also respond to Lowe's arguments concerning the narrow scope of the attorney fee provision. It states, in pertinent part: "Unless the arbitrator's award or controlling law specifically...

Excerpt: ... The parties have provided the Court with a transcript of the discussions held during the meeting. The Court has reviewed the transcript as well as the supplemental papers filed by ASI Computer on July 30, 2019 and the supplemental opposition papers filed by Kang on August 5, 2019. The parties have advised the Court that the number of disputed issues was reduced as a result of counsel's further discussions. ASI Computer's first objection is to th...

Excerpt: ...ella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191.) Plaintiff alleged that he was seriously injured in an accident at the Everport marine cargo terminal "[o]n or about September 26, 2016." (Compl. ¶ 8 at 3.) The two-year personal injury statute of limitations of Code of Civil Procedure section 335.1 (former section 340(3)) accrued and began running on that date. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 C...

Excerpt: ... 10:00 a.m. in Department 15 of the Alameda County Superior Court, 1221 Oak St., Oakland to show cause, if any, why sanctions should not be imposed pursuant to Code of Civil Procedure section 128.7, for the following conduct: On June 28, 2019, attorney Donald C. Schwartz signed and filed, and thereafter advocated, a motion to set aside and vacate default judgment arguing that the default judgment should be vacated, which had already been heard an...

Excerpt: ... the Third, Sixth, Seventh, Ninth, Tenth and the claim for punitive damages is DENIED. Legal Standard for Summary Adjudication "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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no ...

Excerpt: ...s, 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.) The court may consider all material facts p...

Excerpt: ...endant is named in that cause of action. As currently pled, there are no facts specifically indicating why Schubert is liable for any of the claims asserted. Plaintiffs' blanket references to "defendants", plural, throughout the First Amended Complaint is insufficient to put Schubert, or any of the 10 other named defendants, on notice as to why they are being sued. In particular, claims based on fraud must be pled with particularity, including wh...