Excerpt: ...or responding memorandum may exceed 15 pages." Even if the Court were to consider the remaining pages, the Court's ruling would be the same. STANDARD OF LAW "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless ...

Excerpt: ... became indebted to Plaintiff on an open book account for money due, and Count 2 alleges that within the last four years Defendant became indebted to Plaintiff because an account was stated in writing between the parties in which it was agreed that Defendant was indebted to Plaintiff. (Complaint, para. CC-1(a).) In the instant motion, Plaintiff introduced evidence sufficient to meet its initial burden under Code of Civil Procedure section 437c(p)...

Excerpt: ...come the presumption that the plaintiff has selected the proper venue." (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) It is Defendant's "burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action...

Excerpt: ...Honda Civic that struck the rear of Plaintiffs' Chevrolet Impala on May 4, 2016. On August 9, 2018, Plaintiffs filed a Motion for Leave to Amend. Plaintiffs requested leave to amend based on their erroneous identification of the driver of the vehicle. Plaintiffs requested that the Court permit them to name Stephanie Hwang as the driver. They also sought to add Shirley Hwang in the place of "DOE 3" based on her ownership interest in the 2006 Honda...

Excerpt: ...v. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kir...

Excerpt: ...acts sufficient to constitute a cause of action is SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Plaintiff must plead the first cause of action with more specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Plaintiff "must plead every fact which is essential to the cause of action under the statute." (Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207.) Again, Plaintiff has not adequately all...

Excerpt: ...ent 517. The Court continued the hearing on April 23, 2019, because Plaintiff did not provide sufficient competent evidence to support the request for an award of $1,145,240.50. The Court ordered Plaintiff to submit a supplemental memorandum and provide the required evidence no later than July 1, 2019. Plaintiff's supplemental evidence is deficient because the billing records have been redacted without an accompanying Motion to Seal Records. See ...

Excerpt: ...efendant"). Plaintiff seek certification of two classes. The first is "[a]ll non-exempt employees of Payless Car Rental, Inc. in the State of California from July 17, 2013 to the time of final judgment" and the second is "[a]ll employees of Payless Car Rental, Inc. in the state of California who ended their employment with Payless Car Rental, Inc. from July 17, 2014 to the time of final judgment." Plaintiff also seeks certification of two meal br...

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: ...es of the Erchinger Defendants' brief. STANDARD OF LAW FOR MOTION FOR JUDGMENT ON THE PLEADINGS A court may grant a motion for judgment on the pleadings "[i]f the moving party is a defendant," and either "[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint" or "[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "The grounds for ...

Excerpt: ...LC (2014) 59 Cal.4th 348, 382.) Any monetary penalties assessed against the defendant are split between the LWDA and aggrieved employees, with 75% going to the LWDA. (Labor Code § 2699(i).) Representative litigants must submit any settlement of a PAGA representative action for Court approval. (Labor Code § 2699(l)(2).) Unlike government entities represented in False Claims Act qui tam actions, the LWDA does not have a statutory right to interve...

Excerpt: ...f this Order. PARTIES ARE TO APPEAR to discuss a new trial date. Pursuant to Code of Civil Procedure section 428.50(a), "[a] party shall file a cross- complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint." Otherwise, "[a] party shall obtain leave of court to file any cross- complaint [against any of the parties who filed the ...

Excerpt: ...s' Motion to Expunge Lis Pendens for lack of jurisdiction before it considered Plaintiff's opposition as the opposition brief was delayed due to the Court's fax filing system. The Court affirmed the tentative ruling on March 5, 2019. Plaintiff now seeks fees and costs she incurred for opposing the Motion to Expunge Lis Pendens. Under the applicable statute, "[t]he court shall direct that the party prevailing on any motion [seeking expungement] be...

Excerpt: ...h Health & Safety Code section 25249.6; (C) the reimbursement of $21,250 for fees and costs to be paid to Plaintiff pursuant to the CJ is reasonable under California law; and (D) the civil penalty of $2,500 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). Health & Safety Code section 25249.7(f)(4)(A) requires the Court to make a finding that "[t]he warning that is required ...

Excerpt: ...ale has had judgment entered in its favor and is not currently a party to this action. Accordingly, Plaintiff cannot proceed with a deposition against Scottsdale under the authority cited, at least without more evidence and argument for Plaintiff clearly explaining how it can. Further, portions of the case involving Scottsdale are presently on appeal, and it is not clear this Court retains jurisdiction to grant this Motion to Compel at this time ...

Excerpt: ...endant did not comply with the informal discovery procedure required by Local Rule 3.31 and Code of Civil Procedure section 2016.080. The IDC process probably would have avoided or at least narrowed the scope of the instant Motion. Turning to the merits, the Court would have been forced to deny the motion because Defendant did not bear its threshold burden of proving its entitlement to relief by attaching direct evidence that it served a notice o...

Excerpt: ...ns appropriate. First, earlier filings in this action indicate Defendant has filed for bankruptcy protections. This is not addressed Plaintiff's moving papers and, thus, the Court is not informed as to whether the bankruptcy stay has been lifted as to the requested discovery, or if there is legal authority for proceeding even without a lift of the stay. Further, earlier filings in this action indicate Defendant is a forfeited or suspended corpora...

Excerpt: ... is contested by Defendants. IT IS FURTHER ORDERED that Alpha shall provide signed, verified further responses to Plaintiff's Second Set of Interrogatories Interrogatory Nos. 1, 3-4, 6-7, and 9-11, and further responses and responsive documents to Plaintiff's Second Set of Request for Production Nos. 1-2, 5, 7-9 and 13-32, without objections, no later than August 6, 2019. STANDARD OF LAW "[A] civil litigant's right to discovery is broad." (Yelp I...

Excerpt: ...sclosed records to news media of sexual harassment investigations and discipline concerning roughly 113 professors at several campuses," including as to Geoffrey Marcy, Sujit Choudhry, Graham Fleming, Neza AlSayyad, Alan Tansman, John Searle, Robert Van Houweling and Bryan Wagner. (Motion, p. 3, citing Hoffman Decl., Exhs. I through T.) The court has reviewed those exhibits and they appear to include reports of the same general nature as those so...

Excerpt: ...and 2031.300(a), is GRANTED. T. Marshall Associates, Ltd. shall have until August 5, 2019 to serve its verified responses to the interrogatories and requests for production of documents. All objections to the interrogatories and requests for production have been waived because Plaintiff failed to assert them timely. See CCP §§ 2030.290(a) and 2031.300(a). T. Marshall Associates, Ltd. shall also produce all documents responsive to the requests f...

Excerpt: ...fendants' Motion is GRANTED as to Plaintiff's request for punitive damages. Code of Civil Procedure section 425.13's applicability depends upon the gravamen of a plaintiff's claim. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 434.) If medical care was terminated for a reason that does not violate the Unruh Act, then liability based on that medical decision is subject to Code of Civil Procedure sec...

Excerpt: ... The Court notes that Defendants did not comply with the informal discovery conference (IDC) procedure required by Local Rule 3.31 and Code of Civil Procedure section 2016.080. The IDC process probably would have avoided or at least narrowed the scope of the instant Motion. Defendants seek to quash business records deposition subpoenas served by plaintiffs Aries Simmons, Darryl Hadley, and Alden Ortega (collectively, "Plaintiffs") on nonparties I...

Excerpt: ... tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest." (Cal. Rules of Court, rule 2.550(d).) In particular, Defendant Payless Car Rental, Inc. ("Defendant") has designated certain documents produced in discovery as confidential pursuant to the parties' stipulated protective order. Defendant has an interest in protecting the confidentiality of its confidential business information, as do certain putative class...

Excerpt: ... "Uribe action") is GRANTED. Plaintiff's proposed trial plan would create a serious potential for conflicting rulings between this case and the Uribe action. The Orange County Superior Court granted final settlement approval of the class claims there, which overlap claims that had been pending in this case. Plaintiff's proposed trial plan would appear to circumvent the Orange County Superior Court's orders, the Court's April 18, 2019 order denyin...

Excerpt: ...rt (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).) "Malice" is defined as...

Excerpt: ...on the grounds that the allegations of conspiracy tying Kobler to these causes of action are deficient and unspecific. For the reasons stated below, the motion is GRANTED as to the First, Third, and Sixth causes of action (for quiet title) and otherwise DENIED. MEET-AND-CONFER REQUIREMENT Under Code of Civil Procedure ("CCP") section 439(a), a party moving for judgment on the pleadings is required to meet and confer with his counterparty at least...

Excerpt: ...ony issued Kruck a commercial general liability insurance policy. The policy contained a Contractors Coverage Limitations and Audit endorsement. That endorsement expanded the policy's exclusion for bodily injuries to employees to also exclude "'bodily injury' to: (1) an 'employee' or 'temporary worker' of any insured arising directly or indirectly our of: (a) employment by any insured; or (b) performing duties related to the conduct of any insure...

Excerpt: ...mmons on the grounds that this Court lacks personal jurisdiction over it. Plaintiffs oppose. This matter came for hearing on June 26, 2019, and the motion hearing was continued to July 22, 2019, to allow time for discovery into jurisdictional issues. As permitted under the order continuing this hearing, Plaintiff offers a supplemental brief and supplemental evidence. Cummins offers a supplemental reply brief. For the reasons discussed below, the ...

Excerpt: ...s to whether there is a current violation of section 1941.1(a)(1), and what Defendant Bruce H. Hoeger ("Defendant") has specifically done to remedy any such condition. In its order of May 31, 2019, the court noted that Defendant attested in a May 17, 2019 declaration that in February and March 2019, Ryan Gok, a PCC journeyman specialist, "patched and filled concrete, filled joints, caulked the perimeter of the building, and filled holes with conc...

Excerpt: ...ty Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all m...

Excerpt: ...ent, pursuant to Government Code § 815.2, and (2) the District's failure to discharge mandatory duties pursuant to Government Code § 815.6. The Tenth Cause of Action alleges, again, that the District is liable for the actions of unspecified employees working within the scope of their employment pursuant to Government Code § 815.2. The Tenth Cause of Action appears to be entirely duplicative of the same claim made in the Ninth Cause of Action a...

Excerpt: ...n support of the Cross-Defendants' Reply. The Court acknowledges the procedural objections raised by plaintiff Ronald Eichman ("Plaintiff"), but the Court is also reluctant to further delay reaching the merits, unless there is a truly colorable dispute over the existence of an agreement to arbitrate. In other words, the Court needs to know what dispute, if any, might be raised in the form of supplemental briefing or in an opposition to a renewed ...

Excerpt: ...f 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, and treats the de...

Excerpt: ... first action will normally be an ample remedy, and the second is therefore unnecessary and vexatious." (5 Witkin, Cal. Proc. 5th Plead § 1138 (5th ed. 2008).) If the plea is successful, the resulting interlocutory judgment prohibits proceedings in the second action until a final determination of the first. (Id. at § 1149, citing CCP § 597; Lord v. Garland (1946) 27 Cal. 2d 840, 851; Burnand v. Irigoyen (1943) 56 Cal. App. 2d 624, 630; Western...

Excerpt: ...ty is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." The standard of proof on a 36(a) motion is preponderance of the evidence. Fox v. Superior Court, (2018) 21 Cal.App.5th 529, 534. CCP § 36.5 further clarifies that, "an affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon informa...

Excerpt: ...isrepresentation, fraud by nondisclosure, vicarious liability based on respondeat superior, premise owner/contractor liability, and loss of consortium. Defendant is named only under the first through fourth and the seventh causes of action. The Complaint also demands "exemplary or punitive damages according to proof." (Compl. at 27:15.) UNDISPUTED MOTIONS Defendant's Motion is GRANTED as to Plaintiffs' Third Cause of Action for Negligent Misrepre...

Excerpt: ...lity, negligent misrepresentation, fraud by nondisclosure, vicarious liability based on respondeat superior, premise owner/contractor liability, and loss of consortium. Defendant is named under all causes of action. The Complaint also demands "exemplary or punitive damages according to proof." (Compl. at 27:15.) UNDISPUTED MOTIONS Defendant's Motion is GRANTED as to Plaintiffs' Third Cause of Action for Negligent Misrepresentation and Fourth Caus...

Excerpt: ...) and 1985.6(f), Plaintiff was required to serve the motion 5 days prior to the date of production. However, this obligation is not jurisdictional and the court finds that Plaintiff objected to the production by way of the letter sent on May 22, 2019, objecting to the subpoenas and attempting to meet and confer, which was five day prior to the production deadline, which was set in error on Memorial Day, May 27, 2019. (Declaration of Eric G. Young...

Excerpt: ...g must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense." Here Defendants notice requests that the court strike "all references to emotional distress damages, and the preference to prevailing party attorney's fees incurred in the present action." (Defendant's Notice of Motion and Motion to Strike Plaintiff's First Amended Complaint at Page 1:24-26.) PLEAS...

Excerpt: ...Complaint and application papers on Anthony Durulle (or Durelle) Waters and on the Director of the Department of Motor Vehicles ("DMV"). It does not appear that Plaintiff has done so. Plaintiff Sheila Gandy ("Plaintiff") shall appear and explain what efforts she intends to take in this regard. As discussed in that order, this action was initiated by a complaint or petition on May 30, 2019, alleging that Plaintiff's nephew Anthony Durulle (or Dure...

Excerpt: ...aintiffs and Cross-Defendants Morgan and Smith for the claims asserted by Morgan and Smith in their Complaint, then Morgan and Smith should be required to indemnify the Visiting Angels for any sums the Visiting Angels are ordered to pay Morgan and Smith. This claim is completely circular and unsupported by any legal authority cited by the Visiting Angels. The Demurrer to the Second Cause of Action for Implied Contractual Indemnity is SUSTAINED, W...

Excerpt: ...rs Alliance (2002) 102 Cal.App.4th 449, 458-459. In the Second Cause of Action, Plaintiff Noginov alleges that Defendant Schlachter wrote letters to the Zoning Adjustment Board of the City of Berkeley accusing him of violating Penal Code § 631. Plaintiff also alleges that the members of the board read the letters, and that he has sustained damage to his reputation and also severe emotional distress as a result. Defendant Schlachter describes a d...

Excerpt: ... Inc. ("Genentech"), on May 17, 2019; and (2) Deposition Subpoena for Production of Business Records served on the Custodian of Records for Wells Fargo Bank, N.A. ("WFB"), on May 16, 2019. (Decl. of Allyssa Villanueva, Exhs. C and D.) Those subpoenas seek: "Any and all documents and records, and all writings, including, but not limited to, employment, payroll and applications for employment, work absence and incident reports, personnel records, p...

Excerpt: ...er where service of summons is invalid because the plaintiff has not complied with the requirements for naming a Doe defendant pursuant to Code of Civil Procedure section 474. (See Fireman's Fund Ins Co. v. Sparks Construction Inc. (2004) 114 Cal.App.4th 1135, 1144-1145.) A Doe amendment is only proper if the plaintiff is actually ignorant of the facts giving rise to a cause of action against the Doe defendant at the time the complaint is filed. ...

Excerpt: ...to have judgment entered against it if it defaults on the agreement, nor does it clearly indicate the amount that any such judgment would be. Therefore, it does not appear that the Stipulated Settlement Agreement is subject to enforcement pursuant to section 664.6. Third, Plaintiff does not indicate the amount of the judgment sought. The Stipulated Settlement Agreement indicates that Defendant is in arrears on "COP Costs" in the amount of $125,00...

Excerpt: ...e court finds that this action is barred by the doctrine of res judicata, as it is nearly identical to the complaint Plaintiff filed in Case No. HG17859160, Fuller v. Carmax, and arises from the same conduct alleged in support of that Complaint. In that case, the court granted defendant's Special Motion to Strike on 8/16/17, having found that the alleged conduct was petitioning activity protected under both CCP §425.16 and Civil Code §47(b), aw...

Excerpt: ... 10, 2017. Plaintiff Ramona Choyce, on behalf of herself and as guardian ad litem for Minor Plaintiffs Quincy'Ana Mason, Quincy Mason, Jr., and Jaheim Choyce (collectively, "Choyce Plaintiffs"), brought a separate action against Defendant Khaled Saeed on February 23, 2018, arising from claims based upon the same January 26, 2017 fire. The two actions, along with one other action, were consolidated on March 14, 2019. The Court granted Choyce Plain...

Excerpt: ...ourt's accompanying tentative ruling on the motion for judgment on the pleadings. RPII moves for summary adjudication in its favor as to the three matters as to which it seeks a declaratory judgment in its complaint: (1) requiring the City of Oakland ("City"), the City of Oakland Redevelopment Successor Agency ("Agency") and/or the Oakland Redevelopment Agency ("ORA") to respond in a timely manner to RPII's inquiries described in paragraph 10 of ...

Excerpt: ...del it worked on for Daniel. Plaintiff served its Special Interrogatories, Set One ("Interrogatories"), and Request for Production of Documents, Set One ("RFP"), on Daniel on November 14, 2018. Daniel served her responses to both discovery sets on December 19, 2018. In response to Plaintiff's request, Daniel provided supplemental responses to the Interrogatories on February 1, 2019. Plaintiff claims that this supplemental response was deficient, ...

Excerpt: ...s Plaintiff's allegations that Defendant violated Civil Code section 1790 by failing to repair or repurchase Plaintiff's allegedly defective vehicle. (See Complaint.) In support of his claim, Plaintiff seeks discovery related to Defendant's knowledge of the specific problems that affected Plaintiff's vehicle. Plaintiff first propounded his discovery requests over one year ago. (See Memo. Sup. Mtn. re: RFPs, p. 2:6-8.) Plaintiff's present motions ...

Excerpt: ...r Defendant advised the Court in their opposition that they were preparing supplemental responses to Plaintiff's Requests for Production of Documents, Set Two, and a supplemental privilege log. Defendant represented that the supplemental responses and supplemental privilege log would be served on Plaintiff's attorney prior to the June 18, 2019 hearing. Defendant filed its opposition papers on June 5, 2019. The Court ordered the parties to have fu...

Excerpt: ... subd. (c).) "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 merit to an affirmative defense as to any cause of action, or both . . . . A motion for summary adjudication shall...

Excerpt: ...epare for the Motion for Summary Judgment or trial. Plaintiff and Defendants have sought to introduce all of the evidence presented through declarations or requests for judicial notice. The Court cannot and should not dictate counsel's strategic decisions. However, counsel's failure to take depositions certainly resulted in evidentiary problems that the Court cannot excuse in reviewing the motion papers. As the moving party, Plaintiff bears the i...

Excerpt: ..., on June 21, 2019. (See Supp. Decl. of Neeru Jindal, filed June 28, 2019.) Despite such timely notice, Plaintiff has not submitted opposition and has not voluntarily withdrawn the Notice of Lis Pendens, recorded on May 1, 2015 as instrument no 2015115535 in the Alameda County Recorder's Office ("Lis Pendens"), despite several requests. (See Request for Judicial Notice, Exh. A; Decl. of Neeru Jindal, ¶¶ 6-8 and Exh. A; Supp. Decl. of Neeru Jind...

Excerpt: ...CRC 3.1350(b). The court therefore construes this as motion for summary judgment only. REQUEST FOR JUDICIAL NOTICE Defendants' Request for Judicial Notice as to plaintiff's Complaint and defendants' Cross-complaint against DeHaro, Inc., is GRANTED. (Evid.C.§452.) However, the court does not take judicial notice of the truth of matters stated therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403, 38 Cal.Rptr. 183; Day v. Sharp (1975) 50 Cal.App.3...

Excerpt: ...rs when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) Although "there is a strong public policy favoring the settlement of litigation, this policy does not excuse a contractual clause that is otherwise illegal or unjust." (Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127.) The Court must ensure the settlement is not "contrary to law or to public policy." (Consumer Adv...

Excerpt: ...hat cause of action, RPII seeks a declaratory judgment: (1) requiring the City, the City of Oakland Redevelopment Successor Agency ("Agency") and/or the Oakland Redevelopment Agency ("ORA") to respond in a timely manner to RPII's inquiries described in paragraph 10 of the complaint; (2) "holding that a sale of a percentage of RPI's ownership interest for less than ... $38,000,000 net of costs does not constitute a liquidity event under the Loan D...

Excerpt: ... absent class members. The Court CONFIRMS its Order of December 18, 2018 certifying a class for settlement purposes. The Court APPROVES the Settlement Agreement. The Court has considered (1) the relative strength of Plaintiffs' case; (2) the high risk, expense, complexity, and likely duration of further litigation of this dispute; (3) the high risk of maintaining class status through trial; (4) the relatively generous amount offered in settlement...

Excerpt: ...ishes this case from Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865-868. Defendant did not show that she had a "reasonable ground to believe that [she] would prevail on the matter" when she should have known that her defense theory against those elements was based upon a flawed expert opinion not admissible at trial. (Code Civ. Proc., § 2033.420(b)(3); see Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 637-638.) However, Plaintiff did not ...

Excerpt: ...acts sufficient to constitute a cause of action is SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Plaintiff must plead the first cause of action with more specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Plaintiff "must plead every fact which is essential to the cause of action under the statute." (Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207.) Again, Plaintiff has not adequately all...

Excerpt: ...o constitute a cause of action are SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) As the federal district court previously recognized in deciding an earlier motion to dismiss in this action, a high workload in and of itself is not a viable theory of coercive deprivation of meal and rest breaks. (Morales v. Amazon.com, LLC (C.D. Cal., July 30, 2018, No. 2:17-CV-1981-ODW- JEM) 2018 WL 3636888, at *2.) And in California courts, statu...

Excerpt: ... is SUSTAINED WITH LEAVE TO AMEND. Defendants have adequately shown that Plaintiff's allegations against them fail to support a valid claim because they were allegedly discharging their supervisory duties on behalf of the University. See, e.g., Reno v. Baird (1998) 18 Cal.4th 640, 662-663 (individual liability may attach if defendant's conduct falls outside of the scope of necessary job performance). Plaintiff's conclusory allegation that Defenda...

Excerpt: ...Procedure section 425.16 (the anti-SLAPP statute.) Additionally, Defendants seek to recover their attorneys' fees incurred in the defense of Plaintiff's complaint under C.C.P. section 425.16(c). C.C.P. section 425.16(b)(1) states that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connec...

Excerpt: ... requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (Id.) This case arises out of an auto accident that occurred on August 21, 2014. The parties settled the dispute on February 4, 2019 and executed a stipulation regarding settlement ("Stipulation"). The Stipulation stated that Plaintiff would release Defendant from "all rights, claims, d...

Excerpt: ... any void judgment or order." A motion to set aside void judgment or order may be made at any time, and it is immaterial how the invalidity is called to the court's attention. (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1320.) Among other things, the court may set aside a default that is void due to improper service. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200; Ramos v. Homeward Residential (2014) 223 Cal.App.4th 14...

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

Excerpt: ...ll become clear, the Court will rule on the Motion to Strike first. PROCEDURAL HISTORY Plaintiff Terrance Marcel Jones's ("Plaintiff") original Complaint as filed on October 26, 2018 pleaded five causes of action: assault and battery, intentional infliction of emotional distress, negligence, premises liability, and negligent hiring and supervision. Only the fourth cause of action was pleaded against Defendants, and only in the sense that the four...

Excerpt: ...fendants' Motion is GRANTED as to Plaintiff's request for punitive damages. Code of Civil Procedure section 425.13's applicability depends upon the gravamen of a plaintiff's claim. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 434.) If medical care was terminated for a reason that does not violate the Unruh Act, then liability based on that medical decision is subject to Code of Civil Procedure sec...

Excerpt: ... burden of proof. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) The general rule is that "[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that [they] were not reasonable or necessary." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Thus, the trial court must first determine whether costs are allowable at all under the relevan...

Excerpt: ...her to issue a preliminary injunction, the court weighs two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits; and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. The court's determination is guided by a mix of the potential merit and interim harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an in...

Excerpt: ... to allow the parties an opportunity to address concerns with the form of notice and contents of the proposed settlement agreement. The parties submitted a Revised Settlement Agreement and revised class notice on June 19, 2019, and the Court now considers the sufficiency of those documents as revised. When no class has been certified, as is the case here, the Court must determine whether the case meets requirements for certification. (See Anchem ...

Excerpt: ...elow, the requests for joinder by the 530 LLC, SGRE, the Ghattases, and Zumot are DENIED. Gomez's motion is DENIED. JOINDER IN MOTIONS Although there is no statutory provision allowing for joinder in another party's motion, general practice allows a party may join in another party's motion. Such a joinder must be brought and noticed as a separate motion and is proper only when the factual grounds for relief for the joining party are the same as t...

Excerpt: ...ses who are adverse to the class (Evid Code 776), and should be excluded from the class definition. The order of 6/30/17 suggests that managers Jason Johnston and Benjamin Miller should also be excluded. STANDARD "[A] court must not hesitate to disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect o...

Excerpt: ... staying further litigation this action and compelling the dispute to arbitration. Limebike argues that this action is covered by its agreement with Torres to arbitrate "any and all disputes among them exclusively through final and binding arbitration." (Decl. of C. McMahon, Ex. A, ¶ 13.) Limebike claims that at leas two disputes are arbitrable: (1) whether Torres is entitled to injunctive relief, and (2) whether Torres is an "aggrieved employee...

Excerpt: ...t there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shif...

Excerpt: ...ose dates were no longer available. Most recently, Defendant has suggested 7/18/19. On the other side of the coin, on 3/14/19, Defendants noticed the depositions of 23 plaintiffs of which 5 have been taken and 17 will be taken later when scheduling permits. The Motion of plaintiffs to compel attendance of 1919 Bayside LLC's person most qualified at deposition is GRANTED. Bayside LLC's person most qualified must appear as agreed on 7/18/19. The re...

Excerpt: ...intiff is objecting to the amended responses served by Defendant after the court granted in part Plaintiff's two motions to compel. The court had previously required that the parties meet and confer before considering the motion and requested that the parties provide the court with an update on the status of the meet and confer attempts. After having reviewed both parties' status reports, it appears that Defendant Nationstar Mortgage served furth...

Excerpt: ...party's interest in the litigation." The standard of proof on a 36(a) motion is preponderance of the evidence. Fox v. Superior Court, (2018) 21 Cal.App.5th 529, 534. CCP § 36.5 further clarifies that, "an affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any part...

Excerpt: ...ng papers refer to arm's length negotiations in determining the amount of the civil penalty and references information such as sales records to support argument that the assessed penalties are reasonable. (Declaration of Even J. Smith at ¶13.) However, the sales information has not been provided to the Court for review in connection with this motion. Therefore, the court does not have a basis for determining whether the civil penalty is reasonab...

Excerpt: ...er of 8/2/13 granted Ms. Brachfeld's motion for judgment on the pleadings. On 8/26/13, the court entered judgment in favor of Ms. Brachfeld. She is no longer in the case. BLG was a law firm that was apparently controlled and managed by Ms. Brachfeld. BLG allegedly sent dunning letters and filed lawsuits on behalf of Midland. BLG filed a certificate of dissolution on 2/2/15. (Order of 7/27/18.) It is unclear whether BLG is still a party in the cas...

Excerpt: ... the parties ... are an adjunct to the pleadings" and should be used liberally "for the purpose of clarifying and narrowing the issues made by the pleadings." (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 445.) The complaint adequately asserts a cause of action against Mystic under Proposition 65 (H&S 25249 et seq). The 1AC alleges that Mystic manufactures, distributes, or sells belts, that the belts contain lead...

Excerpt: ...99) 20 Cal. 4th 1178, 1216-1217; In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575-1575.) In reviewing a motion to seal, the court starts with the "strong presumption ... in favor of public access to court records in ordinary civil trials." (In re Marriage of Nicholas, 186 Cal.App.4th at 1575.) The party seeking to seal a document in a Court file must overcome that "strong presumption" by presenting declarations that contain fact suffi...

Excerpt: ...alf of the LWDA under PAGA. (Labor Code 2699; 8 CCR 11070(14).) Johnson did not assert class claims and did not assert other Labor Code Claims. The parties in the Johnson case reached a settlement through mediation on 3/22/19. Johnson has not yet filed a motion for approval of the settlement under Labor Code 2699(l)(2). The second filed case is Liang v. FedEx Office and Print Services, Superior Court of California, County of Santa Clara, Case No....

Excerpt: ...ivil Procedure § 437c(f)(1). The undisputed facts establish that Pulte and BMC entered a National Master Supply and Work Agreement ("the Agreement") that requires the "supplier" (BMC) to defend Pulte from all claims arising from or in connection with BMC's "performance of its Work and/or obligations under this Agreement." (See Section 23.1 of the Agreement, quoted in Pulte's Separate Statement of Facts ("SSF") No. 11.) Although BMC purports to d...

Excerpt: ...ents, including cerebral palsy, and behavioral disorders, requiring continual supportive services at school, occupational therapy and physical therapy. Minor has reached a settlement with Dr. Robert Heidersbach and Dr. Vivienne Newman in the amount of $1,250,000.00. $101,206.12 in medical expenses were paid by Medi-Cal, and through attorney negotiations, that lien was reduced to $54,909.51. The proceeds shall be used to pay for these outstanding ...

Excerpt: ...ross-complaint against Plaintiff Konstantin Savvon ("Plaintiff") and others, alleging breach of contract, fraud, negligent and intentional interference with prospective economic advantage, breach of fiduciary duty, corporate waste, unfair competition, civil conspiracy, unjust enrichment, and constructive trust. Defendants allege that Plaintiff stole monies belonging to Defendants by issuing unauthorized checks, and conspiring with other parties a...

Excerpt: ...onsolidated for all purposes. IT IS FURTHER ORDERED THAT all future filings shall be in this action, Yue v. Alvernaz Partners, LLC, et al., Alameda County Superior Court, Case No. RG19014821. "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning p...

Excerpt: ...v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court ma...

Excerpt: ...erriding interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) [t]he proposed sealing is narrowly tailored; and (5) [n]o less restrictive means exist to achieve the overriding interest." (Cal. Rules of Court, Rule 2.550(d).) MOTION TO SEAL Records may be sealed when there are sufficient overriding interests to overcome the right of public acces...

Excerpt: ...intiff does not dispute defendant's claim that the court action should be stayed pending arbitration. STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement 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 contro...

Excerpt: ...ons in the Small Claims Court and/or submit their dispute to private arbitration." (Notice of Motion, p. 1.) Neither the notice of motion nor the supporting memorandum cites the statutory basis for such request. The request is based on the assertion that Defendant and Plaintiff Barclays Bank Delaware ("Plaintiff") are parties to a "Cardmember Agreement" that mandates that any disputes between the parties must be resolved through private arbitrati...

Excerpt: ...nsidered the moving papers, and allowing opposition and reply papers by June 25, 2019 and June 28, 2019, respectively. After considering the moving, opposition and reply papers filed on that schedule, the court rules as follows. First, the request for an order compelling Defendants Rahi Systems, Inc. ("Rahi") et al. (collectively "Defendants") to produce Mark Cohen for deposition pursuant to the Deposition Subpoena served on May 15, 2019 ("Subpoe...

Excerpt: ...lemental Request no later than July 23, 2019. IT IS FURTHER ORDERED THAT Defendant provide all responsive documents to Plaintiffs' Request for Production of Documents, Set 4 and Supplemental Request no later than July 23, 2019. Plaintiffs seek an order compelling Defendant Alameda Unified School District ("Defendant") to further respond with responsive documents and Code-compliant language to certain requests in Plaintiffs' Request for Production...

Excerpt: ...9, 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 seeks an or...

Excerpt: ...ember 26, 2018, and amended responses on or about March 27, 2019. The motion seeks further responses to RPDs Nos. 17, 20 and 21 to SRC and to RPDs Nos. 4, 5, 6 and 7 to SBS. As to RPDs Nos. 17, 20 and 21 to SRC, the motion is GRANTED IN PART. These RPDs seek SRC's corporate stock ledgers, financial statements and general ledgers from 2014 to the date of production. The amended responses contain objections on grounds of overbreadth, burden, lack o...

Excerpt: ...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." (Code Civ. Proc. § 1281.2.) An agreement to arbitrate is unenforceable if both the procedural and substa...

Excerpt: ...sider Plaintiff's untimely opposition filed on June 24, 2019, which were due on June 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 Co...

Excerpt: ...nt with the 2008 MOU. Specifically, the City asserted that the System was overcompensating retirees by (1) improperly including holiday premium pay in the calculation of retiree benefits, (2) improperly including shift pay differential in the calculation of retiree benefits, and (3) improperly including too many holidays in the calculation of retiree benefits. On 8/29/11, the ROPOA filed a complaint in intervention, asserting that it represented ...

Excerpt: ...and reviewed. On its own motion, the Court takes judicial notice of its previous orders granting in part the Motions for Attorney's Fees filed by Knight Law Group in Caron v. FCA US LLC, et al. (Case No. RG15758298) and Barredo v. FCA US LLC, et al. (Case No. RG15784069). The determinations regarding Plaintiff's counsel's reasonable hourly rates made in those cases will be applied to Plaintiff's Motion for Attorney's Fees in this case. The Court ...

Excerpt: ...� 335.1, which requires a cause of action for "injury to ... an individual caused by the wrongful act or neglect of another" to be brought within two years. Plaintiff alleges the accident and injuries occurred on August 12, 2016. (SAC, Attachment 15, ¶ 1.) Plaintiff did not file the initial complaint in this action until October 17, 2018. Thus, absent "equitable tolling" or another basis to toll the statute of limitations, the cause of action wo...