Excerpt: ...has sufficiently demonstrated that it followed the procedures in C.C.P. §§ 386 et seq. for filing its Verified Complaint for Interpleader on October 24, 2018 and for seeking an order discharging it from liability as to the full penalty of Bond No. 358562C in the sum of $15,000 issued on behalf of Wooden Window, Inc. (hereafter the "Bond"). (See C.C.P. § 386(a) and (c); see also Sweeney v. McClaran (1976) 58 Cal.App.3d 824, 828.) Under C.C.P. �...

Excerpt: ...2019, the Court granted Crossroads' motion for summary adjudication as to Triangle's quantum meruit claim based on what was essentially a pleading technicality, i.e., that Triangle's Second Amended Complaint failed to expressly allege the quantum meruit claim as an alternative claim in the event that the parties' contract was legally unenforceable. Triangle's proposed Third Amended Complaint corrects that error. (See proposed Third Amended Compla...

Excerpt: ...tiffs for preliminary approval of class action settlement is [UNDECIDED]. The complaint alleges claims for failure to pay vacation wages under Labor Code 510, failure to provide complete and accurate wage statements under Labor Code 226(a), waiting time penalties under Labor Code 203, and a UCL claim. There are approximately 88 members of the class. The case preliminarily settled for a total of $45,050. The settlement agreement states there will ...

Excerpt: ...rst, a claim against a public entity for failure to discharge a mandatory duty must be based on an "enactment." (See Government Code § 815.6.) The NPDES permit attached as Exhibit A to the First Amended Complaint is not an "enactment" as defined by Government Code § 810.6. Although 40 CFR §122.41 is an "enactment," it does not set forth a mandatory duty on which a claim for failure to discharge mandatory duty can be based. Rather, 40 CFR § 12...

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

Excerpt: ...hat Plaintiff lacks standing to bring the claims. In reviewing the complaint and the matters of which the court may take judicial notice, the court finds that Plaintiff has not adequately demonstrated her standing as either a borrower or owner who can assert the applicable causes of action. Based on the review of the recorded documents of which the court takes judicial notice, Ms. Valdez has not established that she is the owner of the property a...

Excerpt: ...nce, sections 4 and 8 establish notice procedures for increasing the rent. Civil Code 827 states that "landlords" must give 30 days' notice of changes in lease terms such as the monthly rent due. Ordinance section 4 requires that a "landlord" provide a notice and comply with certain procedures before raising the rent. The gravamen of all the claims is that plaintiffs have paid excessive rent from 7/2015 to the present because defendants failed to...

Excerpt: ... damaged by that misrepresentation. Although Plaintiffs allege SMA had a statutory or contractual duty to disclose that it had purchased Plaintiffs' loan and to provide Plaintiffs with periodic statements and repayment information, they fail to cite any legal authority supporting a common law duty to disclose any of that information that would give rise to a claim for fraud by concealment. In addition, as to Plaintiffs' allegations concerning (1)...

Excerpt: ..., WITH LEAVE TO AMEND to allege facts demonstrating that Mapu Tupou's September 10, 2018 telephone call was authorized or ratified by a managing agent of SMA. (See Civil Code § 3294(b).) The Motion is GRANTED as to paragraph 188, WITHOUT LEAVE TO AMEND. Noncontractual damages (such as tort damages and punitive damages) are not available for breach of the implied covenant of good faith and fair dealing outside the insured-insurer relationship. (S...

Excerpt: ...n 301 of the Labor Management Relations Act because it is unclear which facts form the basis for Plaintiff's causes of action against First Transit and based on the allegations in the Second Amended Complaint, it appears that the causes of action may be based on interpretation of the collective bargaining agreement, which is within the purview of the Labor Management Relations Act. "Claims for wrongful discharge generally are preempted where ther...

Excerpt: ....App.4th 1242, 1246.) On 2/2/18 the court set 8/20/18 as the trial date for phases I and II of this case. On 6/28/18, a ballot initiative that would change the substantive law applicable to the claims in this case qualified for the 11/6/18 election. The ballot measure would add Labor Code 887 (letting ambulance drivers be reachable during mean and rest breaks) and Labor Code 889 (stating that 887 is declarative of existing law and applies to pend...

Excerpt: ...discovery be conducted notwithstanding this subdivision." The "good cause" required by the statute generally requires the plaintiff to show "that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case." (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.) "The showing should include some explanation of 'what additional facts [plaintiff] expects to uncover....'" (1-800 Conta...

Excerpt: ... face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 438(d).) A defendant may only make this motion if "the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired." (CCP § 438(f)(2).) While Code of Civil Procedure section 438 includes various time limits for raising the motion, it is generally understood th...

Excerpt: ...by Defendant NTFVA, LLC. Claimant Richard Hyppa ("Claimant") represented Defendants in this action for fourteen months. Caravalho made promises on behalf of himself and NTFVA, LLC to pay Claimant for the representation, and signed a fee agreement on behalf of himself and on behalf of NTFVA, LLC. In the meantime, on August 2, 2016, Roberta Beoris ("Beoris") amended her Third Amended Complaint in her own suit against Defendants in Beoris v. Caraval...

Excerpt: ...ice and Amended Proof of Service filed on June 19, 2019.) Despite such timely service, Defendant has not filed any opposition. Further, the motion makes a sufficient showing that WFB is entitled to judgment against Defendant on the two causes of action in the complaint filed by WFB on December 13, 2018. The First Cause of Action (breach of contract) alleges that WFB and Defendant entered into a written contract attached as Exhibit 1 to the compla...

Excerpt: ...STANDARD OF LAW "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) a...

Excerpt: ...e to the subpoenas no later than July 23, 2019. IT IS FURTHER ORDERED THAT Wells Fargo Bank produce a person-most-knowledgeable to testify to the topics in Plaintiffs' subpoena to Wells Fargo Bank on a mutually agreeable date no later than July 31, 2019. Plaintiffs brought this action based upon an unsuccessful short sale attempt of a duplex in Berkeley, California between October 2013 and February 2015, which was owned by Mark and Nina Harris (c...

Excerpt: ... "seek[] information protected by the work product doctrine." Although the parties resolved their disputes as to the other interrogatory responses, they did not resolve their disputes as to these, as to which the instant motion was timely served based on a written extension of time. Though there was an email requesting an informal discovery conference, Department 520 does not require such conferences. As to No. 12.5, the motion is GRANTED. Amtrak...

Excerpt: ...rch or theories, which is never discoverable], is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." Here, the parties agree, or at least do not actively dispute, that the purported surveillance video of June 9, 2018, which was taken at the direction of Defendants' attorneys as part of their preparatio...

Excerpt: ...ns" was filed on April 23, 2018, attaching an "Amended Notice of Lis Pendens" recorded in the official records of Alameda County as instrument number 2018073458 on April 12, 2018. The amended notice refers to a prior instrument recorded on August 31, 2017, as instrument # 2017191876. The Lis Pendens and Amended Notice of Lis Pendens were recorded on behalf of Plaintiffs The Hutton Group, Inc. ("Hutton"), Endvest Holdings, LLC and Endvest, LLC ("E...

Excerpt: ...hicles' warranties had expired. It further alleges that Alani owns a 2012 model-year Sorento, which he purchased new in February 2012 and took it in for engine repairs in March 2015, August 2017, April 2018, June 2018, and August 2018. The Complaint also alleges that, in October 2018, KMA sent a letter to the owners of all 2012 Kia Sorentos (among model years and other models with the same engine). The letters informed the owners of a "Product Im...

Excerpt: ...9, but that they were rejected for lack of reservation number, which Defendants unsuccessfully requested on May 17, 2019. The brief delay in filing as a result of this difficulty does not appear to have affected Plaintiff's ability to prepare opposition on the merits. The same is true as to the objection based on email service. Though Plaintiff asserts the parties did not have an agreement to accept such service, and that the papers were not serv...

Excerpt: ...l steroid injection. As a result of that injection, Plaintiff allegedly suffers chronic pain and loss of vision in her right eye. MacLean was named as a defendant in this case but dismissed without prejudice on November 1, 2018. The remaining defendants (KFHI, KFHP, and PMG) now move to transfer venue to Santa Cruz County, where Watsonville sits, on grounds that it would be more convenient for the witnesses and would serve the interests of justic...

Excerpt: ...ant final approval of the terms of the Settlement Agreement and the incentive awards, but requires further information before it can approve the attorney's fees requested. 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 notes that Plaintiff's counsel seeks...

Excerpt: ...ntiff was granted leave to file a First Amended Complaint on May 14, 2019, but has not yet filed the Complaint. The Court further notes that neither defendant has made an appearance in this case. Also, the Settlement Agreement purports to settle PAGA claims, which are not asserted in the currently operative Complaint. Plaintiff was granted leave to file a First Amended Complaint on May 14, 2019 but has not yet done so. The Court is not inclined t...

Excerpt: ...f Action for failure to prevent disability discrimination. Because summary judgment may be granted only if the moving party is entitled to judgment as to all causes of action, the court addresses the motion for summary adjudication as to each cause of action in turn. A. First Cause of Action This cause of action alleges that Roadrunner "discriminated against Plaintiff by terminating his employment because of Plaintiff's disability status." (Compl...

Excerpt: ...mmons on the grounds that this Court lacks personal jurisdiction over it. Plaintiffs oppose. LEGAL STANDARDS "A defendant . . . may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her." (Code of Civ. Proc. ("CCP") § 418.10(a)(1).) This motion challenges either a plaintiff's compliance with statutory requirements for service of process or the Court's personal jur...

Excerpt: ...aragraphs are irrelevant and prejudicial, citing Evidence Code sections 1155 and 352. Were it not for the lack of relevance discussed below, the court likely would not exercise its discretion to strike these paragraphs based solely on sections 1155 and 352. Those statutes pertain to admissibility of evidence at trial rather than imposing a limit on what may be pleaded in a complaint. Further, section 1155 precludes evidence of insurance only "to ...

Excerpt: ...sible evidence demonstrating that it made a disclosure of its intent to require all disputes to be resolved by binding arbitration in compliance with Health & Safety Code § 1363.1. Kaiser's only evidence that it purportedly made that disclosure is the declaration of James Larreta-Moylan, but Mr. Larreta-Moylan admits that Kaiser had not been able to locate any screen-prints showing the actual, entire Conditions of Acceptance/Arbitration Agreemen...

Excerpt: ...s. The discussion was instead focused on the merits of each side's legal position. Plaintiff correctly asserts that Defendant is required to allege sufficient facts to support each of the identified affirmative defenses. See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. The Court cannot overlook Defendant's failure to comply strictly with her pleading obligation just because virtually no parties actually make factual allegati...

Excerpt: ...omplaint, 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 demurrer ...

Excerpt: ...ssault, battery, intentional infliction of emotional distress, and negligence are all SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Plaintiff's FAC seeks to hold Defendants liable for obtaining temporary restraining orders (TROs) against nonparty Julie Ann McCullough and Plaintiff. The gravamen of Plaintiff's FAC is that in the course of providing legal services, Defendants negligently failed to discover the true facts of Juli...

Excerpt: ...ction against defendants Cold Storage Manufacturing ("CSM") and Cold Storage Design & Build, Inc. ("CSDB") (collectively, "Defendants"). Plaintiff seek certification of a class defined as follows: "All nonexempt construction employees, including panel installers, refrigeration installers, electricians, plumbers, welders, and shop employees, excluding Crew Leaders, employed by Defendants at any time from July 8, 2011 to the present." GENERAL STAND...

Excerpt: ...o based snack foods" without a clear and reasonable warning as required by Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. (Compl. ¶ 1 at 1.) Plaintiff now seeks judicial approval of a proposed settlement and consent judgment with Defendant. The Court has a duty in reviewing "Proposition 65 settlement[s] brought by a private plaintiff . . . to safeguard the rights of the public." (Consumer Advocacy Group, Inc. v. Kinte...

Excerpt: ...rko") rather than Cross-Defendant Steve Wilt ("Wilt"), although this is not clear. The last sentence of the introduction states: "Solomon now seeks reimbursement of these fees as a direct damage [sic] of Wilt and Berko's actions." The last sentence of the argument section states: "As a result, Solomon request [sic] this court employ the exception created by the tort of another doctrine and require Berko to reimburse Solomon for the fees incurred ...

Excerpt: ...f Civil Procedure sections 128.5 et seq., 2023.030 et seq., the Discovery Act and the inherent authority of the court. The motion focuses on a letter and two declarations attributed to Fei Liu, Phebe's husband Tony's business partner, which Defendants assert contained text that was either mis-translated from the original Chinese or fabricated, as well as an incorrectly explained redaction in the letter. The letter was filed on July 24, 2018, in c...

Excerpt: ...auses of action in the complaint filed on August 6, 2018. Ally introduced evidence sufficient to meet its initial burden under C.C.P. § 437c(p)(1) of supporting all elements of its causes of action for breach of contract, claim and delivery, injunctive relief and indebtedness for money. (See Separate Statement of Undisputed Material Facts ["UMF"], Nos. 1-8, Issue One (first and fourth causes of action), Nos. 1-8, Issue Two (second and third caus...

Excerpt: ...indings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition rais...

Excerpt: ...oena directed to East West Bank dated August 1, 2018 (the "Subpoena"): (1) time-frame; (2) bank account number; and (3) protective order. As to time-frame, the Subpoena seeks "[a]ll banking records of Edward Chang dba Cafe Tapioca for its Pleasanton store from 7/1/2013 through January 31, 2016...." In an email from counsel for Plaintiffs Yushan Huang aka Stacy Huang and Joshua Hsia ("Plaintiffs") dated August 16, 2018, however, Plaintiffs agreed ...

Excerpt: ...e section 473(b). (See CCP sec. 473(b) ["The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect [and such application] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."...

Excerpt: ...o. RG17872872: Bay Valley Foods, LLC, CVS Pharmacy, Inc., and Costco Wholesale Corporation Case No. RG17881931: Kellogg USA, Inc., Kellogg Sales Company, and Safeway, Inc. Case No. RG17886808: Sunsweet Growers, Inc., and Safeway, Inc. Defendants seek to stay fact discovery by plaintiff Center for Environmental Health ("Plaintiff") in their respective actions until the Court enters liability-phase rulings in Case Nos. RG16838609, RG17851469, RG178...

Excerpt: ...o. RG17872872: Bay Valley Foods, LLC, CVS Pharmacy, Inc., and Costco Wholesale Corporation Case No. RG17881931: Kellogg USA, Inc., Kellogg Sales Company, and Safeway, Inc. Case No. RG17886808: Sunsweet Growers, Inc., and Safeway, Inc. Defendants seek to stay fact discovery by plaintiff Center for Environmental Health ("Plaintiff") in their respective actions until the Court enters liability-phase rulings in Case Nos. RG16838609, RG17851469, RG178...

Excerpt: ...ment of Motor Vehicles ("DMV"). This action was initiated by the filing of a complaint or petition by Plaintiff Sheila Gandy ("Plaintiff") on May 30, 2019, alleging that her nephew Anthony Durulle (or Durelle) Waters "unlawfully transferred or started the transfer of my Ford 150 2005," and that "DMV has a title transfer pending as of May 16, 2019." The complaint, along with the "ex parte" application filed on May 30, 2019, seeks a restraining ord...

Excerpt: ...d that Reeder is a party to an agreement with nonparty Reign Real Estate Services, Inc. ("RRES"). Cross-Defendants did not show that they are nonsignatories with standing to enforce RRES's arbitration agreement with Cross-Plaintiff. (Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 541, 547.) Cross-Defendants' Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to all causes of action. (Code Civ. Proc., § 438(c)(1)(B)(ii).) Cross-...

Excerpt: ...to arrears on his loan. Bea applied for a loan modification from SPS and Chase in late 2018, and SPS and Chase allegedly decided to offer him a "trial period plan" for a loan modification. But SPS and Chase allegedly did not communicate this approval to Bea by telephone (as he had requested) or by mail. If he had received the offered trial payment plan, he allegedly would have availed himself of the opportunity. After Bea failed to make his payme...

Excerpt: ... damaged by that misrepresentation. Although Plaintiffs allege SMA had a statutory or contractual duty to disclose that it had purchased Plaintiffs' loan and to provide Plaintiffs with periodic statements and repayment information, they fail to cite any legal authority supporting a common law duty to disclose any of that information that would give rise to a claim for fraud by concealment. In addition, as to Plaintiffs' allegations concerning (1)...

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

Excerpt: ...es of action 1-6 assert class claims alleging that (1) AC Transit has a policy in violation of the FEHA of providing accommodations to workers who were injured on the job but not to workers who are similarly impaired but due to pregnancy and (2) AC Transit has a policy in violation of the FEHA the Pregnancy Disability Leave Law, and the UCL of not accommodating lactating motions. Nikki McNaulty asserts the 7th cause of action as an individual cla...

Excerpt: ...acts sufficient to constitute a defense. (See Code Civ. Proc. § 438(c)(1)(A).) Defendant's statement "I can pay month a month for me no problem is OK" is not sufficient to dispute the allegations of the complaint or to constitute a defense. Pursuant to Code of Civil Procedure § 431.20(a), "[e]very material allegation of the complaint or cross-complaint, not controverted by the answer, shall, for the purposes of the action, be taken as true." (S...

Excerpt: ...ng 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 shifts to plaintiff to show the existence of a triable issue of fact rega...

Excerpt: ...rules for employment disputes and also set out six separate itemized provisions. Tesla asserts that Rodriguez electronically signed the offer letter and agreed to arbitration. (Ward Dec and Supp Dec.) Rodriguez states that he recalls accepting a position at Tesla by clicking through a link, but that he does not recall the offer letter. (Rodriguez, Dec, para 6-7.) ORDER ON ARBITRATION The Motion of defendant Tesla to compel Jorge Rodriguez to arbi...

Excerpt: ...ms against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of...

Excerpt: ...e or other damages imposed primarily for the sake of example and by way of punishing the defendant." (Gov. Code § 818.) Accordingly, IT IS ORDERED that item 3 of the Prayer for Relief is STRICKEN. The motion to strike the request for injunctive relief, as sought in item 7 of the Prayer for Relief, is DENIED. Although there is no opposition by Plaintiff Bobby Pierce II ("Plaintiff"), a motion to strike is subject to the court's discretion, regard...

Excerpt: ...ers. The Officers' counsel requested all reports and complaints from the IA investigation before the second interrogation under Government Code section 3303, subdivision (g), as interpreted in Santa Ana Police Officers Assn. v. City of Santa Ana [hereafter "Santa Ana POA"] (2017) 13 Cal.App.5th 317, 328. CPRA refused to produce the materials and insisted that the officers sit for interrogation. Based in part on those interrogations, the CPRA foun...

Excerpt: ...e challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based ...

Excerpt: ...es of action 1-6 assert class claims alleging that (1) AC Transit has a policy in violation of the FEHA of providing accommodations to workers who were injured on the job but not to workers who are similarly impaired but due to pregnancy and (2) AC Transit has a policy in violation of the FEHA the Pregnancy Disability Leave Law, and the UCL of not accommodating lactating motions. Nikki McNaulty asserts the 7th cause of action as an individual cla...

Excerpt: ...Section (Information Systems and Information Resources) (Declaration of Edward A. Wallace, Exhibit A). For purposes of this Motion, Plaintiffs indicate that they are not seeking to compel testimony on topics 13-19. Plaintiffs' characterization of the subject deposition topics as "narrowly tailored" is inaccurate. They are extremely broad, and Defendants' reluctance to accept Plaintiffs' counsel's representation that they are only seeking informat...

Excerpt: ...x Property Trust, Inc., et al. (Case No. RG13689355). The Court is familiar with the procedural history and the facts in the prior lawsuit. The Court granted Defendants' unopposed Motion for Summary Judgment on September 13, 2018. On February 26, 2016, the Court denied Plaintiff's Motion to Set Aside the Summary Judgment Order. Plaintiff's claims against Defendants fail to state a cause of action because Defendants did not owe Plaintiff a duty of...

Excerpt: ... social media. The fee for mayoral candidates is $1,000, which includes the cost for assessing publication of a candidate's qualification statement in the voter information pamphlet. Plaintiff paid a $50 deposit to the Oakland City Clerk, e-mailed his Qualification Statement on August 7, 2018, and on August 10, 2018, paid the remaining $950 fee and gave the City Clerk a printed copy of the Qualification Statement. The City Clerk informed Plaintif...

Excerpt: ... managed under orders relating cases. On August 2, 2016, this court issued an Order On Preemption Demurrer that applied, by stipulation of the parties, to 11 of the related cases. That order addressed challenges to two forms of complaints, one of which was framed to include causes of action for (1) Negligent Failure To Warn, (2) Negligence, (3) Strict Products Liability, and (4) Fraud, and the other to include causes of action for (1) Negligent F...

Excerpt: ...ative defenses to the six causes of action in the complaint, including pleading "ultimate facts" (not just legal conclusions) supporting each affirmative defense and "refer[ring] to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished." (C.C.P. § 431.30(g); see also FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [affirmative defenses should be "averred as carefully...

Excerpt: ...: "All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section.... The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." The "good cause" required by the statute generally requires the plaintiff to show "that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case...

Excerpt: ...notice of motion was not specific as to the grounds on which the motion pertaining to Mr. Cuturic was based, "the supporting memorandum addressed the allegations as to Mr. Cuturic...." Thus, the court understood this to mean Mr. Cuturic was moving separately for summary judgment on all causes of action as to him. Nevertheless, because Plaintiffs argued at the hearing that the lack of specificity caused them to focus on Dr. James's asserted liabil...

Excerpt: ...g his alleged professional negligence. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Despite having an opportunity to do so, Plaintiff failed to present any competent expert evidence to rebut Defendant's prima facie showing. See Osborne v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 273. Counsel for Defendant shall promptly prepare the Proposed Order for the Court's consideration. See Rule of Court 3.1312. NOTICE: Effe...

Excerpt: ...tion at that time. Instead, counsel shall be prepared to address the following matters: (1) On June 13, 2019, Plaintiffs Peter Yeh aka Chu-Kuo Yeh and Chiu-Ying Yeh ("Plaintiffs") filed an Ex Parte Application to continue the hearings on the two motions for summary judgment, along with the trial and related dates. The court has considered the opposition papers filed by Defendants on June 13, 2019, but has not ruled on that application. Instead, t...

Excerpt: ...t his address of record, and Plaintiff has not submitted any opposition. Further, the demurrer sufficiently demonstrates that Plaintiff's complaint, filed on April 19, 2019, does not state facts sufficient to constitute a cause of action on any of the three theories asserted in the complaint for all the reasons discussed in the demurrer and supporting memorandum, which cites legal authority supporting Defendants' arguments. Without limitation of ...

Excerpt: ...n of Alycia A. Degen, Exhibit L). The dates and locations of the subject depositions were subsequently disclosed to Plaintiffs via email on October 31, 2017 (Degen declaration, Exhibit M). In their reply Plaintiffs point out that the dates are "illusory" because they are "contingent on the dates working for counsel, including in other jurisdictions." The court continues to encourage the parties to explore opportunities to facilitate cross-jurisdi...

Excerpt: ...ure, Inc., et al. ("Defendants") characterize as "discovery on discovery." More specifically, Plaintiffs are attempting to discover how Defendants conducted the searches that lead to the production of documents responsive to two sets of requests for production of documents ("RPD") and the responses to a first set of SI. First, the court rejects Defendants' argument that "discovery on discovery" is inappropriate across the board because it does no...

Excerpt: ...y Defendant ("complaint files"). More specifically, Plaintiffs seek an order that Defendant produce the same materials that it produced to FDA inspectors during inspections in December, 2010 to January, 2011, and in May to June, 2013, as referenced in the Establishment Inspection Reports attached to Plaintiffs' Motion as Exhibits C and D, while Defendant seeks a protective order regarding the same complaint files. All complaints regarding a medic...

Excerpt: ...of LBE was making her uncomfortable at work by looking at her breasts and making comments about her. Plaintiff contends that LBE retaliated against her for making a complaint, informing an investigator hired by LBE of her fear of retaliation and reporting to the investigator that, because of her complaints, other employees were calling her "that fucking bitch" and saying the company should "[t]hrow her out." Plaintiff claims that LBE created a pr...

Excerpt: ...nsortium. Plaintiffs seek an order quashing the business records subpoena that Defendants served on Bank of America, N.A. on March 12, 2019, which seeks any and all bank account records of Decedent from 5/12/2012 to the present. (Declaration of Daniel L. Osier ["Osier Dec."], Ex. A.) Plaintiffs argue that the subpoena is overbroad as to time and scope, and violates constitutionally protected privacy rights with respect to personal financial infor...

Excerpt: ...ted, made, constructed, assembled, marketed, advertised, promoted, distributed, and sold by Bayer called "Essure" ("these coordinated proceedings" or "JCCP 4887") and the appointment of this court as Coordination Trial Judge, this court issued rulings on August 2, 2016 applicable to certain of cases now included in JCCP 4887 that originated in the Alameda County Superior Court and were subject to related case orders filed in each. Included were (...

Excerpt: ...r protected activity in the case of Princess Pope v. Essex Property Trust, Inc., et al. (Case No. RG13689355). See CCP § 425.16(e)(1) (any written or oral statement or writing made before a legislative, executive, or judicial proceeding); Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 ("A claim arises from protected activity if that activity underlies or forms the basis for the claim."); Navellier v. Sletten...

Excerpt: ...oherent and concise manner that allows the court or Plaintiff to identify the facts supporting each affirmative defense. Instead, they are in the nature of broad and general arguments about the claims. This does not comport with C.C.P. § 431.30(b), which states: "The answer to a complaint shall contain: (1) The general or specific denial of the material allegations of the complaint controverted by the defendant[; and] (2) A statement of any new ...

Excerpt: ...t The Craneway Pavillion, in Point Richmond, on August 5, 2017. The White Party Event was organized by Defendant 1stFriday.com (aka 1st Friday of the Bay Area). Plaintiff contends that Top Flight Security was hired to provide security for the event. Plaintiff makes clear that Top Flight Security does not agree with this contention. Plaintiff explains in some detail that Top Flight Security did nothing to ensure the safety of attendees at the Whit...

Excerpt: ...ers. The Officers' counsel requested all reports and complaints from the IA investigation before the second interrogation under Government Code section 3303, subdivision (g), as interpreted in Santa Ana Police Officers Assn. v. City of Santa Ana [hereafter "Santa Ana POA"] (2017) 13 Cal.App.5th 317, 328. CPRA refused to produce the materials and insisted that the officers sit for interrogation. Based in part on those interrogations, the CPRA foun...

Excerpt: ...0.300(d).) Sanctions in the amount of $640.00 is payable by Johns to Plaintiffs. This action arises from a May 12, 2017 car accident between decedent Srouey Khin ("Decedent") and a Temsa charter bus owned and operated by Defendants. The bus driver, Johns, pled guilty to vehicular manslaughter. Plaintiffs are decedent's wife and four children, and commenced this action for wrongful death and loss of consortium. On June 1, 2018, Plaintiffs served J...

Excerpt: ...fs state that they recently discharged their attorney, Frank E. Mayo. Plaintiffs contend that they are completely unprepared for trial. Plaintiffs imply that they have not done any discovery due to Mr. Mayo's misconduct. Plaintiffs did not provide the Court with any competent evidence to support the serious claim of client abandonment by Mr. Mayo. The Court also reminds Plaintiffs that they were represented by Albert Boasberg for the first 15 mon...

Excerpt: ...onclusion based solely on the facts alleged in the Complaint and facts of which the Court is required to take judicial notice. Res judicata applies where the claim in the present action is identical to the claim litigated in the prior proceeding; there was a final judgment on the merits in the prior proceeding, and the party against whom the doctrine is being asserted is a party to the prior proceeding. (See, e.g., Consumer Advocacy Group Inc. v....

Excerpt: ...oticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." The "good cause" required by the statute generally requires the plaintiff to show "that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case." (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.) "The showing should include some explanation of 'what a...

Excerpt: ...ion to Continue Trial in August 2019. Defendant has no right to file a Motion for Summary Judgment if its attorneys have not been diligent. The Court notes that Defendant was represented by Gordon & Rees at the outset of the case. Defendant made its initial appearance two years ago, in June 2017. The Erskine Law Group substituted into the case on November 14, 2017. The retention of new counsel does not entitle Defendant to any additional consider...

Excerpt: ..., 2019, the other three defendants/cross-defendants addressed in this motion (James L. Krasne, as Trustee of the Guilford Glazer Trust of 1984; Diane Pregerson Glazer, as Trustee of the Diane Pregerson Glazer Survivor's Trust; and Jeremy Blanchard), hereafter "Managers," served verified amended responses. (See Reply, p. 2; see also Decl. of Nicole L. Jones, Exhs. A and B; Decl. of Gregory Prongos, ¶ 8 and Exh. 4.) While Carson and Managers conte...

Excerpt: ...y in favor of his employer's workers' compensation insurance can be finalized. Defendants URS Midwest, Inc., United Road Services, Inc., Lisa D. Romero (both individually and doing business as "LDK Trucking"), and Jonathan Michael Murray oppose. For the reasons discussed below, the motion is DENIED. PROCEDURAL MATTERS Motion papers must be served and filed at least sixteen court days before the hearing. (Code of Civil Procedure ["CCP"] § 1005(b)...

Excerpt: ...t file their Answer until April 30, 2019. The deadlines for responding to a validation or reverse validation action as provided in Code of Civil Procedure sections 861.1, 862 and 869 function as a statute of limitations, and if an interested party does not appear during the prescribed time, he or she loses the opportunity to challenge or support the government's action. (See City of San Diego v. San Diegans for Open Government (2016) 3 Cal.app.5t...

Excerpt: ...gues that no defendant is domiciled in Alameda County and that Whitlach's claims arose in Stanislaus County because he was employed there. Defendant Century 21 seeks to join Premier Valley's motion. The Complaint originally purported to seek damages and restitution on behalf of a plaintiff class, but the Court adopted a stipulated order on June 5 dismissing all claims except those seeking civil penalties under the Labor Code Private Attorneys Gen...

Excerpt: ...old showing that the challenged cause of action is one arising from a protected activity, i.e., an act in furtherance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether the plaintiff or cross-complainant has demonstrated a probability of prevailing on the claim. The plaintiff or cross- complainant demonstrates this by ...

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: ...the County of San Joaquin ("SJHA"). Plaintiff also seeks a protective order, and for expenses and sanctions in the sum of $4,110. STANDARD OF LAW "[T]he court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders." (CCP § 1987.1(a).) "In addition, the court may make any o...

Excerpt: ...el for the parties. The Trial Setting Order states specifically that requests to continue the trial are disfavored and that the Court grants such requests only when exceptional circumstances exist. Defendants have not established the existence of any exceptional circumstances in this case. Defendants' request is based on Plaintiff's failure to provide verified responses to their initial discovery requests served on October 23, 2018. Plaintiffs we...

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: ...§ 664.6.) The parties in this case reached a settlement on February 19, 2018, which required that Defendants pay Plaintiff $30,000.00, consisting of an initial installments to Plaintiff and Plaintiff's counsel, Parviz Darabi, totaling $7,500 on or before May 5, 2018, and then $2,500 total installments a month for the following nine (9) months beginning June 5, 2018. Untimely payments incurred a $150 late fee. If Defendants failed to make any of ...

Excerpt: ...t. Plaintiff prevailed by obtaining a default judgment together with an award of attorney's fees. Plaintiff's further request for fees were incurred in protecting and enforcing the judgment. (See Code Civ. Proc. § 685.040; see also Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 938.) The Court will, however, reduce the fee award. First, the 28 hours of claimed time is unreasonably high in light of the actual complexity of the issues that were tend...

Excerpt: ...36(a), the court "may" - but is not required to - strike allegations that are irrelevant, false or improper as reflected on the face of the challenged pleading or matters of which judicial notice is taken. Thus, "when a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of act...

Excerpt: ... amount of $1,000 for rental assistance for Plaintiff. (Declaration of Gia Austin-Carroll ("Austin Dec."), Ex. 1 at p. 6.) Plaintiff asserts that it is undisputed that the $1,000 was paid by the American Red Cross, and that Ms. Smith acknowledged receipt of the $1,000, and she later confirmed that the full $1,500 security deposit was paid. Plaintiff asserts that her tenancy terminated in October 4, 2016. Defendant Dellesia Onifade's ("Defendant")...

Excerpt: ...tcome in Ellison. ELLISON V. AUTOZONE, INC. Defendant has not established that the rule of comity should be applied to stay this action pending the outcome of Ellison. The rule of comity "is merely discretionary when applied to a potential conflict between state and federal courts." (Sumitomo Bank v. Davis (1992) 4 Cal.App.4th 1306, 1312.) Federal courts "do not apply their comity rule of priority to proceedings in personam." (Gregg v. Superior C...

Excerpt: ...36(a), the court "may" - but is not required to - strike allegations that are irrelevant, false or improper as reflected on the face of the challenged pleading or matters of which judicial notice is taken. Thus, "when a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of act...

Excerpt: ... Section 1290.6 states in relevant part that a "response shall be served and filed within 10 days after service of the petition" except where service is outside the state pursuant to C.C.P. § 1290.4(b)(2), which was not the case here. Section 1290 provides that the allegations of a petition are "admitted by a respondent duly served ... unless a response is duly served and filed." (C.C.P. § 1290.) As a response was not "duly served and filed" wi...

Excerpt: ... April 8, 2019 in accordance with C.C.P. §§ 1285.4 and 1290.4. The instant petition was filed and served 46 days after filing and service of the petition to confirm the award, which is well beyond the 10-day period (plus 5 for service by mail) required by C.C.P. § 1290.6 for a "response" to a petition to confirm an award. Section 1290 provides that the allegations of a petition are "admitted by a respondent duly served ... unless a response is...

Excerpt: ...as the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability ...

Excerpt: ...n 21 Owners Association v. John Morrison, Inc., et al., Alameda County Superior Court, Case No. RG17879877. "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 proceedings therein as may tend to avoid unnecessary costs or delay." (CCP § 1048(a)...