Excerpt: ...sed. (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, reading it as a whole and its parts in their context and treats the demurrer as admitting all material facts properly pleaded. [Citati...

Excerpt: ... ("CCP") section 474. Kentucky Trailer moves to quash service of summons on the grounds that this Court lacks personal jurisdiction over it. Plaintiffs oppose and ask, in the alternative, that the hearing on this motion be continued to permit time for jurisdictional discovery. For the reasons detailed below, the hearing on this motion is CONTINUED to September 23, 2019, at 3:00 P.M. in Department 19, Administration Building (Third Floor), 1221 Oa...

Excerpt: ...inancial condition of the defendant." (Civ. Code § 3295(a).) A plaintiff may not take discovery into these subjects "unless the court enters an order permitting such discovery . . . ." (Civ. Code § 3295(c).) The Ghattas Defendants object that Plaintiffs' motion (and any discovery allowed thereby) would occur after the discovery cut-off. (See Code of Civ. Proc. § 2024.020 ["Except as otherwise provided in this chapter, any party shall be entitl...

Excerpt: ... their time. Plaintiffs argue that J-M waived its right to compel further deposition by failing to meet and confer during the original deposition and did not indicate on the record that it disagreed with the instruction. J-M did not waive its right to compel further answers-Plaintiffs' counsel clearly instructed McMains not to answer the questions and J-M is within its right to move to compel responses to bring the issue to the Court's attention....

Excerpt: ...on will refer to the corporation as the "Diocese" to avoid confusion with Bishop Barber. Defendant Father Neal Clemens is another priest employed by the Diocese. Fr. Dinh is not named as a defendant in this suit. Doe asserts the following seven causes of action against the Defendants: (1) sexual battery, (2) violation of the Bane Act (Civ. Code §§ 52, 52.1), (3) fraudulent misrepresentation, (4) intentional interference with prospective economi...

Excerpt: ... original Complaint with leave to amend. The Court has also reviewed the parties briefs submitted in connection with that Demurrer. The Court agrees with Defendant's main assertion that Plaintiff's First Amended Complaint is not clearly pled. Plaintiff's numerous allegations based on its "information and belief," does not absolve it or its attorneys from possible liability under CCP § 128.7(b). Plaintiff has certified that all of the allegations...

Excerpt: ...ss is defined as: "All individuals who have worked at [any of eight] Restaurants owned by [Defendants] in the four years preceding October 23, 2018." (TAC, para. 21.) However, the named plaintiff, Ismael Mercado ("Plaintiff"), alleges he worked at only four of those eight restaurants, three for one to two days each, and one for two years. (See TAC, paras. 1, 8, 9.) Plaintiff alleges a "community of interest common to all class members" premised o...

Excerpt: ...d to plead specific facts supporting each element of his fraud claim against Defendant. See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; and Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff did not do that. Furthermore, although Plaintiff provides the Court with some details to support an inference that the sellers knew about the unpermitted garage conversion at the time of the sale in April 2017, there ar...

Excerpt: ...class action suit against Safeway, whistleblowing, and due to his age. The Court had previously sustained with leave to amend Defendants' demurrer to the First Amended Complaint to the same causes of action. STANDARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to s...

Excerpt: ...Real Estate Services represented the seller. Plaintiff was represented by her own real estate agent in the transaction. Plaintiff alleges that Defendants failed to disclose the known history of landslide problems on the property. Plaintiff alleges that she would have considered such information to be material. Plaintiff sustained resulting financial loss. Defendants' Demurrer to Plaintiff's First Cause of Action for Breach of Contract is SUSTAINE...

Excerpt: ...Safety Code section 25249.6; (C) the reimbursement of $13,000 for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; and (D) the civil penalty of $2,000 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). The CJ requires that beginning on the Effective Date, Defendant Pacific World Corporation ("Defendant") shall not manufac...

Excerpt: ... misrepresentation. The Eighth Cause of Action at issue here alleges that Defendant Michael Feiner ("Feiner") obtained a zoning variance to develop and construct Temescal Lofts, which included a landscaping plan approved by the Emeryville Planning Director that shows a pond, rather than the Tipuana trees that are now on the property. Plaintiff asserts that this landscaping plan constitutes a covenant that runs with the land, and that Defendants h...

Excerpt: ...ing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5." (CCP § 598.) Further, "[t]he court, in furthe...

Excerpt: ...to file its Motion for Summary Judgment so that it can be heard at least thirty (30) days before the trial. There was no compelling reason to wait. Plaintiff then responded by making a late request to file a First Amended Complaint. The Court does not find that good cause has been shown pursuant to Rule of Court 3.1332. Defendant 24 Hour Fitness USA, Inc.'s assertion that it has a "statutory right" to file a Motion for Summary Judgment against th...

Excerpt: ...iff's counsel have graciously given Defendant's attorney extensions of time so that she can locate him. Defendant's attorneys even retained a private investigator. Defendant's attorneys say that there is a high probability that Defendant no longer lives in Oakland or even the United States. Defendant's unexplained absence from the jurisdiction is not a justification for his failure to comply with discovery obligations. The Court anticipates that ...

Excerpt: ...Summary Adjudication of Issues heard on April 4, 2019. The Court granted the motion in part and gave Plaintiff leave to file a Second Amended Complaint, "because the sole negligence claim asserted is clearly ambiguous, indefinite and uncertain." The Court vacated the April 29, 2019 trial. The Second Amended Complaint was filed on April 25, 2019. Whereas the First Amended Complaint is 8 pages long, the Second Amended Complaint has 14 pages of sing...

Excerpt: ...int is not the proper court"; and (2) C.C.P. § 397(c), which authorizes a change of venue "[w]hen the convenience of witnesses and the ends of justice would be promoted by the change." The court determines that UC has met its burden as to both alternate grounds and that Plaintiff has not introduced evidence or authority to the contrary. First, though Alameda County is the place of UC's principal office, this in itself does not make it a proper v...

Excerpt: ...uction of documents, against defendant and/or cross-complainants Pathos Management Group, LLC, Nicholas Eftimiou, John Eftimiou and Anna Eftimiou" ("Cross-Complainants"). (Notice of Motion, p. 2.) Though the notice of motion does not specify the particular requests for production ("RPDs") to which Movants seek responsive documents, the memorandum addresses RPD No. 24 to Nicholas, RPD No. 21 to John and Anna, and RPD Nos. 1- 13, 15-18, 20-23, 29, ...

Excerpt: ...ion practice since the action was commenced on January 22, 2018. The jury trial date is February 3, 2020. Plaintiffs have sued Defendant for the loss of certain items of clothing and damage to other clothing items entrusted to Defendant for cleaning. Defendant advises the Court that Plaintiffs provided counsel with an inventory of their losses which total $26,738.47. Plaintiffs have no other claims against Defendant in this action. Based on its r...

Excerpt: ...t [Dhaliwal] Law Group" (Complaint, ¶ 11), and a director or officer of a corporation does not incur personal liability for torts of the corporation "merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done." (Memo., p. 4, citing 3 Witkin, Sum. of Cal. Law (7th ed. 1960) § 48(c), and Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 505.) As established in the cited au...

Excerpt: ...ated at 530 24th Street in Oakland. Cohen and the LLC hired SG to be the property manager for the Apartments. This is a consolidated proceeding with two operative complaints, the Guerrero Third Amended Complaint ("GTAC"), which was filed December 13, 2018, and the Sabino Third Amended Complaint ("STAC"), which was filed June 15, 2018. Moving Defendants' arguments are directed only to the GTAC, which is the relevant pleading for purposes of this m...

Excerpt: ...ter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit." (C.C.P. § 437(b).) The instant motion is not accompanied by a request for judicial notice. Instead, it is based on matters set forth in a Declaration of Philip E. Yeager, Defendant's counsel. A "defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence.......

Excerpt: ..., located in the Hayward Hall of Justice. Plaintiffs Michael Saunders and Darlene F. Saunders filed their Limited Jurisdiction Complaint on June 19, 2018. The parties have advised the Court that no depositions of any witnesses have been taken in the thirteen (13) months that this case has been pending. The parties advise the Court that Gerlyn and George Neau noticed the deposition of Plaintiffs in April 2019, but the deposition was canceled witho...

Excerpt: ...t and since ALG has not appeared in the action, the Court is concerned about its authority to compel ALG to comply with the terms of the settlement, as it does not appear to have jurisdiction over ALG. Additionally, although defendant Sylvermax, Inc. has appeared in the action, it has not paid its first appearance fees, which are due when a defendant files its notice of appearance. Defendant Sylvermax, Inc. is ordered to submit its first appearan...

Excerpt: ...rsion before the Court is an Amended Joint Stipulation of Class Action Settlement ("Settlement Agreement"). To protect the interests of absent class members, class action settlements must be reviewed and approved by the Court. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646 ["The [trial] court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settleme...

Excerpt: ...e of the legal effect of pleadings but does not accept the truth of any facts set forth therein). Plaintiff and Defendants Xingbiao Li, Yunlong Li and Shengli Li are the only members of 150 Hegenberger Capital, LLC, a California limited liability company. Plaintiff has a thirty percent (30%) interest in the company. Xingbiao Li also has a thirty percent (30%). Yunlong Li and Shengli Li, the sons of Xingbiao Li, each hold a twenty (20%) interest i...

Excerpt: ...te the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. § 1281.2.) Plaintiff does not dispute that she signed the Tesla offer letter electronically on December 20, 2016. The offer letter included a clause on pages two and three requiring Plaintiff and Defendant Tesla, Inc. to submit any and all disputes...

Excerpt: ...te of the Complaint. MOTION TO COMPEL "[A] propounding party may move for an order compelling a further response [to interrogatories] if the propounding party deems that . . . [a]n answer to a particular interrogatory is evasive or incomplete . . . [and/or] [a]n objection to an interrogatory is without merit or too general." (CCP § 2030.300(a).) Plaintiff asserts that Defendant's response to Special Interrogatories Nos. 1 and 2- which seek the c...

Excerpt: ...tutory requirements. Dr. Friedman submitted a declaration that describes each of the tests that he proposes to administer to Plaintiff. The Court agrees that the tests are standard and will not likely result in undue annoyance, pain or anguish to Plaintiff. If Plaintiff is unable to endure an entire day of testing, her attorney and Defendant's attorney shall meet and confer regarding a schedule that addresses Plaintiff's concerns. For example, Pl...

Excerpt: ...LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of w...

Excerpt: ...n March 28, 2019. Regarding the documents related to Dr. Polfiet's examination of Plaintiff on March 28, 2019, the court finds that Plaintiff is entitled to Item No.1, requesting all documents related to Plaintiff's examination, Item No. 2, requesting all reports prepared regarding Plaintiff and Item No. 3 regarding all of the raw scores, T scores, and scales pertaining to Plaintiff's examination. Such documents are exempt from the attorney work ...

Excerpt: ...e in reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Defendant also correctly pointed out that the evidence proffered by Plaintiff in support of the Motion papers was not competent evidence. First, the supporting declaration did not correctly track the language of Code of Civil Procedure section 2015.5. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609- 618; accord Bombardier Recreational Products, Inc. v. Do...

Excerpt: ..., Inc., et al., Alameda County Superior Court, Case No. RG16843879 STANDARD OF LAW "[T]he power of a court to stay proceedings . . . was inherent at common law and is now vested in the superior courts of this state." (Bailey v. Fosca Oil Co. (1963) 216 Cal. App. 2d 813, 817.) "The case management tools available to trial courts, including the inherent authority to stay an action when appropriate . . . can overcome problems of simultaneous litigat...

Excerpt: ...ion under Code of Civil Procedure section 436 to strike portions of the complaint. 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...

Excerpt: ...iel Covarrubias, Jeffrey Ellis, Frankie Flores, Marte Formico, David Gamble, Naji Garabet, Gregory Haupt, David Pinheiro, Kevin Scully, and Lisa Vermette's (collectively, "District Manager Defendants") Demurrer is SUSTAINED WITH LEAVE TO AMEND. IT IS ORDERED THAT Plaintiff shall file an amended complaint no later than August 27, 2019. Defendant Guadalupe Diaz's Request for Joinder in Farmers Defendants' Demurrer is GRANTED. District Manager Defen...

Excerpt: ...revent a November 28, 2017 sexual assault on Plaintiff at Encinal High School in Alameda. The operative SAC, filed June 28, 2019, alleges four counts against all defendants: failure to maintain safe environment, negligent supervision, intentional infliction of emotional distress, and violation of California Civil Code section 51 et seq. Defendant has pleaded general demurrers to the first, third, and fourth counts. Defendant's Demurrer to the Fir...

Excerpt: ... Amended Complaint, not a First Amended Cross- Complaint. But, since both sides are referring to that pleading as a FACC, the Court will do the same. Cross-Defendants' general demurrers to the First, Second, and Third Causes of Action for failure to state facts sufficient to constitute a cause of action are SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Cross-Defendants' Request for Judicial Notice is GRANTED. The judicially no...

Excerpt: ...ng only objections, to the above-listed RPDs on February 15, 2019. (Hoffman Decl., Exh. B.) The parties met and conferred as to the above items without success. Although UC served amended responses to other RPDs in Set Six on April 29, 2019, they did not include amended responses to the above items. (Eklof Decl., ¶ 2 and Exh. A.) UC agreed to extend the motion to compel deadline to May 7, 2019, making the instant motion timely. (Hoffman Decl., �...

Excerpt: ...d each time they are repeated, resulting in 147 facts. In the present order, the Court will refer to Defendants' Separate Statement Facts ("SSF") Nos. 1-58, 77, 88, 101, 139, and 147, not the various other renumbering of SSF Nos. 1-58 that appear throughout the Separate Statement. Defendants seek summary judgment or, alternatively, summary adjudication as to four issues. Defendants do not directly correlate these four issues with any of the five ...

Excerpt: ...n September 12, 2017. Junsay missed his rent payment due June 1, 2018, and made no further payments. The parties dispute when ELBP recovered possession of the Premises. According to Katie McKenna (ELBP's agent and property manager) , ELBP recovered possession in January 2019. According to Junsay, he quit the premises on August 26, 2018, in compliance with a 3-day notice to quit dated August 23, 2018. The 3-day notice listed an amount owed of $7,1...

Excerpt: ...issued an order sustaining a demurrer to the breach of contract cause of action in the First Amended Complaint ("FAC"), with leave to amend to allege facts sufficient to constitute such a cause of action including "(1) identifying with more specificity the contract between Plaintiff and GEICO; (2) setting forth the contract as an exhibit or alleging the material terms thereof verbatim or according to their legal effect; (3) specifying the terms t...

Excerpt: ...ct.is designed to protect artists seeking professional employment from the abuses of talent agencies. The Act's definition of a talent agency is narrowly focused on efforts to secure professional "employment or engagements" for an "artist or artists." (§ 1700.4, subd. (a).) Thus, it does not cover other services for which artists often contract, such as personal and career management (i.e., advice, direction, coordination, and oversight with res...

Excerpt: ...m Plaintiff's assignors Ferguson Perforating Company ("Ferguson") and PDM Steel Service Centers, Inc. ("PDM"). Primus submits no evidence disputing Plaintiff's evidence that Primus entered contracts with Ferguson and PDM and is in default on those contracts, and indeed Primus admits that it is in default on the PDM contract in the principal amount of $41,043.46. In granting the writ of attachment, the Court accepts Primus' evidence and reduces th...

Excerpt: ... (4/23/19 order, citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)" The order further stated: "As GEICO is a corporate employer, such a request must include allegations to the effect that the alleged 'advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice [was] on the part of an officer, director, or managing agent of the corpo...

Excerpt: ...n the accompanying Appendix." Plaintiff did not file an Appendix with her motion. The Court notes that Defendants contend that Plaintiff is seeking to add a new Defendant and to amend her liability claims because they recently advised her attorney that they are going to file a Motion for Summary Judgment. If true, the Court cannot deny Plaintiff's motion on that basis. The amendment or attempted amendment of pleadings to stave off summary judgmen...

Excerpt: ...aintiff states that she returned the shoes to Marshalls despite being asked by Defendant's liability insurer to retain them and to take photographs of them. The Court will not summarize the diligent efforts of counsel to obtain the information formally and informally from TJX, Inc., the parent company of Marshalls. The Court previously concluded that Defendant presented ample evidence to establish that Plaintiff's actions were willful. The Court ...

Excerpt: ... to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (CCP sec. 1281.2; cf. 9 USC secs. 1 et. seq....

Excerpt: ...edes, the viability of his claim for punitive damages is dependent upon his seventh cause of action for fraud by omission. (Pl.'s Opp. at 3:14-21.) Since the Court is concurrently sustaining Defendant's Demurrer with leave to amend, it follows that Plaintiff has not adequately pleaded his claim for punitive damages. Plaintiff cites federal cases which merely analogized Song-Beverly civil penalties to punitive damages in order to find a sufficient...

Excerpt: ... intrusive means. (See Liberty Mut. Ins. Co. v. Sup. Ct. (1992) 10 Cal.App.4th 1282, 1287-1289.) Here, Ms. Johnson-Trammell is the Superintendent of Oakland Unified School District. (See Ex. 3 to Dec. S. Eckstein.) This would qualify her as an apex employee or its equivalent. (See Liberty Mut. Ins. Co., supra, 10 Cal.App.4th at 1287-1289.) In failing to oppose this motion, Plaintiffs have not provided any evidence Ms. Johnson-Trammell possesses a...

Excerpt: ...eir attorney, Mark Ellis, decided that he no longer wanted to represent Defendants. Counsel made a last-minute request to continue the trial that the Court believes should have been denied. There is currently no trial date. Defendants' motion is denied for substantive and procedural reasons. The Court initially observes that Defendants did not file a declaration to indicate that they made a reasonable and good faith attempt to resolve the dispute...

Excerpt: ...cember 31, 2018." (Decl. of Ray T. Rockwell, Exh. A, ¶ 3.) The written Agreement states that "[i]t is the intention of the Parties to settle and dispose of, fully and completely," the claims and disputes reflected in the instant lawsuit or arising from the operative facts alleged herein. (Id., ¶ 2.4.) The Agreement contains the parties' mutual releases of claims against each other arising from such facts, except as to the rights or claims creat...

Excerpt: ... defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined." C.C.P. § 391(b)(3) also defines a vexatious litigant as a person who in "propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, c...

Excerpt: .... "Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing." (CCP § 1005(b).) "However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California[.]" (Id.) 16 court days before July 25, 2019...

Excerpt: ...ponse, without objections, stating he conducted a diligent search and made reasonable inquiries but he "never had the requested documents" (cell phone records from April 25, 2015). Plaintiff asserts Rodriguez has a duty to obtain them, even if they are not in his possession, by asking his wireless carrier, Verizon, for them. Rodriguez asserts the "meet and confer" efforts as to RPD, Set 3, No. 1 were deficient, as Plaintiff failed to address the ...

Excerpt: ...at: the defendant breached its duty to exercise ordinary care and that the breach was a substantial factor in bringing about the plaintiff's harm. (Id.) "The cases require that an owner must have actual or constructive notice of the dangerous condition before incurring liability." (Id., at p. 1203.) "The plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it." (Id.) Here, the s...

Excerpt: ...D., and The Hospital Committee for The Livermore-Pleasanton Areas also filed Demurrers to Plaintiff's Complaint. After Defendants' Demurrers were sustained with leave to amend on July 13, 2017, Plaintiff filed his First Amended Complaint on July 27, 2017. Plaintiff Sisodia presented at the emergency room at ValleyCare with severe abdominal pain at about 6:00 a.m., on November 20, 2015. ValleyCare is located at 5555 W. Las Positas Blvd., in Pleasa...

Excerpt: ...Directors, contends that Defendants have done certain things that violate various Dublin laws, Association rules and provisions of the Declaration of Covenants, Conditions, and Restrictions of the Association. Defendants contend that Plaintiff's allegations are false and the claims are without merit. Defendants believe that Plaintiff sued them because they have made claims of construction defects. The Court cannot grant Defendants' motion because...

Excerpt: ... respect to SLS' judicial estoppel argument. Defendant Prestige Default Services' ("Prestige") request to join in this Demurrer is GRANTED. PROCEDURAL HISTORY The following chronology of events is based upon Plaintiff's Corrected Second Amended Complaint ("SAC") filed on March 26, 2019, and evidence upon which the Court takes judicial notice. Plaintiff owns a property in Hayward, California (the "Property"). Around 2006, Plaintiff obtained a seco...

Excerpt: ... a basis for the court to impose a duty to disclose. (See Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.) The complaint does not allege a partially or grossly misleading affirmative statement before or at the time of sale that would trigger a duty to disclose in an arms-length transaction. (Id. at 312-313.) Plaintiff vaguely alleges that Defendant expressed general warranties, and that Plaintiff "interacted with GM's sales represe...

Excerpt: ...the ground that there is a another action pending is SUSTAINED. In the First Cause of Action, Plaintiff seeks to quiet title to a month-to-month tenancy at 7203A Holly Street, Oakland, and the Second Cause of Action seeks a declaration that Plaintiff owns has month-to-month tenancy. Plaintiff does not seek to establish an ownership in interest in the real property, but merely the right to reside there as a tenant. Defendant Dellesia Onifade's com...

Excerpt: ...intiff seeks a Right to Attach Order in the sum of $139,930.00 on two parcels of property that Defendant apparently owns in Contra Costa County and San Luis Obispo County. Plaintiff has not shown that the issuance of a Right to Attach Order is appropriate in this case because Plaintiff's claim does not arise out of Defendant's conduct of a trade, business, or profession. See CCP § 483.010(c); and Nakasone v. Randall (1982) 129 Cal.App.3d 757, 76...

Excerpt: ...ject of Plaintiff's claims. The non-compete agreements that Medidata Solutions, Inc. employees signed provide that they shall be construed by the laws of the State of New York. The non-compete agreements that Sparta Systems, Inc. employees signed indicate that they shall be construed by the laws of the State of New Jersey. Since this case was filed on July 17, 2017, Plaintiff and Defendants have cited only California cases and statutes in their m...

Excerpt: ...ants that are the subject of Plaintiff's claims. The non-compete agreements that Medidata Solutions, Inc. employees signed provide that they shall be construed by the laws of the State of New York. The non-compete agreements that Sparta Systems, Inc. employees signed indicate that they shall be construed by the laws of the State of New Jersey. Since this case was filed on July 17, 2017, Plaintiff and Defendants have cited only California cases an...

Excerpt: ...IN PART as to the subpoena served on Plaintiff's former employer Digilant, Inc. Preliminarily, the Court rejects Defendant's argument that this motion should be denied because Plaintiff's privacy rights are adequately protected by the parties' stipulated protective order. A stipulated protective order addressing the disclosure of confidential information to nonparties does not cure any impermissible invasion into Plaintiff's right to privacy. (Se...

Excerpt: ...ce at Deposition. In that ruling, the court noted that it "finds the parties' discussiono f the merits of the case and the statements and conduct at mediation irrelevant, distracting and disconcerting. The court is also disturbed by the unprofessional tone in some of the communications between couinsel that preceded the motion as well as counsel's inabilitly to work together to achieve a compromise of their positions so as to avoid the need for a...

Excerpt: ...ject matter of this lawsuit or reasonably calculated to lead to the discovery of admissible evidence. Plaintiff's request for an award of sanctions against Defendant 24 Hour Fitness USA, Inc. and its attorneys of record in the sum of $3,060.00 is GRANTED IN PART. Although Defendant unreasonably refused to cooperate with counsel in his efforts to take Ms. Peterson's deposition, the amount requested is excessive under the circumstances. The Court i...

Excerpt: ...unds that Plaintiffs J.B. Butler and C.A. Blanton ("Minor Plaintiffs") are both under the age of 14. Defendant DCo, LLC does not object to trial date so long as it is at least 120 days from the hearing on this motion or orders expedited discovery from Plaintiffs. Defendant Honeywell International joins DCo's conditional non-opposition. Defendant Utility Trailer Manufacturing Co. opposes. Defendant Cummins, Inc. also opposes. Defendant BorgWarner ...

Excerpt: ...oved to his left and tripped over a concrete "bench" adjacent to the walkway. The bench is 18" wide and rises approximately 15" above the walkway exiting the multipurpose room. The floor on the other side of the bench is approximately 24" lower than the floor on which Plaintiff was walking, which means that the height differential between the top of the bench and floor onto which Plaintiff fell is approximately 39". (See, generally, the District'...

Excerpt: ...END. The motion to strike is GRANTED WITH LEAVE TO AMEND. LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its...

Excerpt: ...n this Court. Plaintiff Weintraub purchased a 2011 Kia Optima from an unidentified dealership on June 20, 2011. The Court did not carefully review the 55-page Complaint filed by a different firm against Kia Motors America, Inc. in the U.S. District Court for the Central District of California entitled, Greg Wallis, et al. v. Kia Motors America, Inc., et al. Plaintiff attached the Wallis complaint to the First Amended Complaint. The Wallis complai...

Excerpt: ... opposition. Nevertheless, Essex was able to substantively respond to Plaintiff's arguments in reply, so the Court shall consider both parties' papers. This action arises from a flooding incident in a unit occupied by Plaintiff Maureen McFadden ("Plaintiff") at the Essex House Condominiums (the "Property") in Oakland, California in November 2017. Essex seeks an order compelling further responses to certain interrogatories in its Form Interrogator...

Excerpt: ...or the trial court to allow a plaintiff to serve the Secretary of State without having made that mandatory showing. (See Bakersfield Hacienda, Inc. v. Superior Court (1962) 199 Cal.App.2d 798, 803-805.) Plaintiff's Motion only showed that he had been unable to serve Defendant's designated agent. Corporations Code section 1702(a) differs from its ancestor, former section 3303 (as quoted in Bakersfield Hacienda), in that it uses the word "or" to di...

Excerpt: ...es of action within an action . . . if the party contends that the cause of action has no merit. . . ." (CCP sec. 437c(f)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "[T]he party moving for summary judgment bears an initial burden of production to mak...

Excerpt: ...INATING SANCTIONS AND MOTION TO COMPEL A terminating sanction is generally a "last resort" where other lesser sanctions would not be effective to address the discovery misuse. (See, e.g., Weil & Brown et al., Cal. Prac. Guide: Civ. Proc. Before Trial (TRG 2011 ed.) ¶¶ 8:1211-8:1215.1, and cases cited therein.) "If a lesser sanction fails to curb abuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incremen...

Excerpt: ... the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. sec. 1281.2; see also 9 USC secs. 1 et. seq.) Plaintiff filed his Complaint on November 29, 2018 alleging various caus...

Excerpt: ...04.3, 211-4-211.3, 214.1, and 216.1; Special Interrogatories Nos. 5-10, 12, 15, 18, 21, 23, 24, 26-109; and Requests for Production of Documents, Set One, Nos. 2-5, 10, 12, 13-15, 17, 18- 23, 25-40, 44-49, and 54-103. (Code Civ. Proc. §§ 2030.300(a), 2031.310(a).) Plaintiff's Motion to Compel is also treated as a Motion to Compel Compliance and as such is GRANTED as to all of the foregoing Requests for Production of Documents. (Code Civ. Proc. ...

Excerpt: ... for settlement purposes. The Court has a "fiduciary responsibility as guardian[] of the rights of the absentee class members when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) The Court is obligated to ensure that the "agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, i...

Excerpt: ...endants' response to each of the document production requests is "None," which is not sufficient to comply with their discovery obligations in this case. The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) a statement that the party will comply; (2) A representation that the party lacks the ability to comply; or (3) An obj...

Excerpt: ...Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499 is not a pro forma exercise. Without sufficient evidence and analysis of the settlement by the settling parties, the Court is left primarily to draw inferences and speculate concerning more than one of the Tech- Bilt factors. "[W]ithout the facts . . . it is impossible for a court to exercise its discretion in an appropriate fashion." (Grand Terrace, 192 Cal.App.3d at 1263.) It is a...

Excerpt: ...al entered on August 24, 2018. The Court SETS ASIDE the order granting Defendant's Motion for Summary Judgement dated July 13, 2018. The court also SETS ASIDE the court's four orders dated February 14, 2018 granting in part Defendant's two motions for sanctions and award of monetary sanctions, granting Defendant's motion to compel and award of monetary sanctions, and granting Defendant's Motion for Admissions Deemed Admitted and award of monetary...

Excerpt: .... (Though the notice of motion also refers to C.C.P. § 425.11 and "lack of or improper service of summons," there are no arguments and no evidence in this regard in the supporting memorandum or declaration.) First, Defendant has not made a sufficient showing for relief pursuant to section 473.5. That statute authorizes relief "[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action...." (C.C.P. § 47...

Excerpt: ...er natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (CCP § 2025.420(b).) A protective order may include instructions "[t]hat the deposition not be taken at all," "[t]hat the deposition be taken only on certain specified terms and conditions," "[t]hat certain matters not be inquired into," and/or "[t]hat the scope of the examination be limited to certain matters[.]" (Id.) In ad...

Excerpt: ... is treated as Motion for a Protective Order as to both deponents and is GRANTED. The parameters of the protective order, which will govern the conduct of the Atkinson deposition, are set out below. These motions are directed to Petitioners' notices for the depositions of two former Presidents of the University of California: Richard C. Atkinson (1995-2003) and Robert C. Dynes (2003-2007) (collectively, the "deponents" or "witnesses"). Neither de...

Excerpt: ... Although Defendant did not expressly tender this issue in his notice of motion, the supporting papers gave ample notice of the relief sought. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) In this instance, Plaintiff merely alleged that Defendant "negligently maintained a premises on which the plaintiff lived and allowed her to be beaten and abused as alleged herein." But such mere negligence and inaction is not enough. Plaintiff did not...

Excerpt: ...d impose a considerable burden on them to travel to Oakland for a single hearing. (Cal. Rules of Court, rule 7.952(a).) Only Plaintiff's counsel is required to appear in person at the hearing in Department 16. Counsel for the defendants are welcome to observe but are not required to appear in person. The foregoing ruling is predicated upon the following conditions: First, the Petition as filed and lodged omitted Attachment 18a. Plaintiff's counse...

Excerpt: ...tion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit." (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047, citing Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Such liberality in allowing amendments is to be exercised "at any stage of the proceedings, up to and including trial," absent prejudice to the adverse party. (Atkinson v. Elk ...

Excerpt: ... 19, 2019. Plaintiff states that due to medical issues she was unable to file a timely opposition. Nevertheless, Essex was able to substantively respond to Plaintiff's arguments in reply, so the Court shall consider both parties' papers. This action arises from a flooding incident in a unit occupied by Plaintiff Maureen McFadden ("Plaintiff") at the Essex House Condominiums (the "Property") in Oakland, California in November 2017. Essex served it...

Excerpt: ...served several sets of written discovery requests on Plaintiff's counsel on May 2, 2018. Defendant advises that Plaintiff's attorney did not comply with his obligation to serve timely responses that complied with the requirements of CCP §§ 2030.210 et seq. and 2031.210 et seq. Defendant, however, did not request judicial relief until it filed its Motion to Compel on October 31, 2018. Defendant advised that Plaintiff's attorney made repeated pro...

Excerpt: ...f filed her first lawsuit on or around February 28, 2013 in the Superior Court of California, County of Alameda as Case No. RG13669175 ("Initial Action"). In the Initial Action, Plaintiff alleged causes of action for violations of California Civil Code sections 2924(a)(6) and 2924c, negligence, breach of contract, misrepresentation, fraud, and elder abuse. Fannie Mae was awarded summary adjudication of several issues on March 26, 2015 and, after ...

Excerpt: ...no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue...

Excerpt: ...reek, respectively. Judge Warren issued his decision and award on February 20, 2019, awarding no damages to either party. Clark petitioned the Court to vacate the arbitration ward on May 29, 2019. The stated grounds for vacation are that Judge Warren failed to comply with California Rules of Court, Ethical Standards for Neutral Arbitrators in Contractual Arbitration, Standard 12 ("Standard 12"), and that his award contains obvious and manifest er...

Excerpt: ...of Ramos on April 18, 2018. On an unopposed motion by Nationwide, the Court ordered the Lemus and Mendez actions consolidated for all purposes on July 30, 2018. Plaintiff Michelle Carter filed another case on February 15, 2019, alleging that she was injured in the same accident. (RG19007188.) Nationwide, as defendant- intervenor, now moves to consolidate the Carter case with the already-consolidated Lemus/Mendez case. Plaintiffs Lemus and Carter ...

Excerpt: ...erform necessary environmental remediation of the site. As a result, Plaintiff alleges that petroleum has contaminated the soil and groundwater on Defendants' property and that contamination has migrated onto Plaintiff's adjoining property. Plaintiff alleges causes of action for trespass, nuisance, negligence, breach of contract, declaratory relief, and unfair business practices. Defendants demur to the Sixth Cause of Action for Unfair Business P...

Excerpt: ...aived any such claims in the "Stipulation re: Dismissal/Judgment" filed on that date in Alameda County Superior Court Case No. RG16-827749, which contained a Civil Code section 1542 waiver releasing any known or unknown claims against Bay Property Group or its attorneys (including Daniel Bornstein). The vast majority of the allegations in Plaintiff's Complaint involve events occurring prior to October 17, 2016. Plaintiff has waived any claims bas...

Excerpt: ...nt showing of the probable validity of Plaintiff's claim to possession of the 2014 Harley Davidson vehicle described therein. Plaintiff has also established that Defendant has no equity in the vehicle, such that no undertaking is required. (See C.C.P. § 512.060(a)(2).) Defendant's undertaking to prevent repossession of the vehicle is set in the amount of $13,225.00 as requested. (See C.C.P. § 515.010(b).) Plaintiff has established that there is...

Excerpt: ...er Olesen by Dr. Strassberg. In addition, Plaintiff shall have the right to make an audio recording of the examination. See CCP § 2032.530(a). The Court declines to dictate the manner of examination by Dr. Fayer. Plaintiff has not shown any compelling reason why the administering of the MMPI test by Dr. Fayer would constitute an infringement of her constitutional or statutory rights. As Defendants note, if Plaintiff does not want to subject hers...

Excerpt: ... the instant motion. Defendant also did not pay the monetary sanction in the sum of $900.00 by the May 23, 2019 deadline. The Court hereby awards Plaintiff his reasonably incurred attorney's fees and costs in the sum of $1,200.00. See CCP § 2023.030(a). Plaintiff's request for an award of $2,320.00 is not reasonable in view of the straightforward nature of the motion. Defendant shall pay the additional sanction no later than July 17, 2019. The C...

Excerpt: ...or by the act of the creditor from paying the debt." (Civ. Code § 3287(a).) An amount is "certain" or "capable of being made certain by calculation" only when the defendant actually knows the amount owed or could have accurately computed it based on information reasonably available to it. (Children's Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 774; Howard v. Am. Nat'l Fire Ins. Co. (2010) 187 Cal.App.4th 498, 535; Watson Bowman Acme Co...

Excerpt: ...ading. Therefore, the Court deems the City's demurrer as directed to Plaintiff's First Amended Complaint. Plaintiff has adequately pled her First Cause of Action for Dangerous Condition of Public Property pursuant to Government Code section 835 et seq. Specifically, Plaintiff has alleged the dangerous condition that caused her accident (an uplifted sidewalk with a crack in the concrete where it meets the curb, causing a trip and fall hazard); tha...

Excerpt: ...xchange ("CCIE"), Mark Barteld, and Jill Krovitz demur to the second cause of action (intentional infliction of emotional distress). Defendants argue that the FAC fails to allege facts giving rise to a cause of action, and the Barteld and Krovitz ("Adjusters") argue that they are misjoined. For the reasons discussed below, the demurrer is SUSTAINED WITH LEAVE TO AMEND. PROCEDURAL MATTERS The Code of Civil Procedure ("CCP") requires parties to mee...