Excerpt: ...assertion that they need not answer Form Interrogatory 216.1 for their denials of Plaintiff's material allegations because they filed a General Denial has merit. Defendants agreed to provide verified responses for their affirmative defenses. Defendants indicate that Plaintiff should have simply served specific contention interrogatories. The motion is granted because Defendants' legal position is without merit. Defendants stated in their Answer, ...

Excerpt: ...ging that Defendants failed to reimburse its employees for uniform expenses. Plaintiff Billingsley was employed as a retail employee at stores in Oakland and Emeryville from May 2013 until fall 2016. On October 6, 2017, Plaintiff amended her complaint to add a cause of action for penalties under the Private Attorney Generals Act ("PAGA"). (Cal. Labor Code § 2699.) Plaintiff's class action claims were subsequently dismissed at her request on Apri...

Excerpt: ...s counsel should not have combined three separate sets of discovery requests in a single motion. This rule applies in particular to cases where the alleged transgression is the failure to provide an adequate response or a failure to comply with a discovery request as agreed. In addition, although the parties apparently believe that the Court should have a complete understanding of all of the discovery issues in the case, including prior violation...

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

Excerpt: ...tore's ("Plaintiff") February 13, 2019 FAC states that he is the leaseholder of a unit at a commercial property in Oakland (the "Property"), and brings this action against Bay Dev, owner of the Property, and Parker, the managing member and principal owner of Bay Dev. In January 2010, Plaintiff entered into a rental agreement with the original owner of the Property for five years, with an option to renew for an additional five years on like terms ...

Excerpt: ...10(a); Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421 [demurrer for lack of subject matter jurisdiction is general demurrer].) Plaintiff's FAC again did not plead facts showing that Plaintiff exhausted all administrative remedies afforded by Defendant or that a valid excuse exists for not exhausting such remedies. (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1379.) Administrative exhaustion is "a jurisdictional prerequ...

Excerpt: ... tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial not...

Excerpt: ...mplaint is DENIED. DEMURRER Cross-Defendants have demurred to the Cross-Complaint's sixth cause of action for "tort of another," and only to that cause of action. "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) ...

Excerpt: ...of a Chapter 11 bankruptcy petition imposed an "automatic stay on all state and federal proceedings outside the bankruptcy court against the debtor and the debtor's property." (Shaoxing County Huayue Import & Export v. Bhaumik (2011) 191 Cal.App.4th 1189, 1196.) The Bankruptcy Code's automatic stay normally does not extend to non-debtor defendants like MTC. (Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979.) But, this action is not yet at...

Excerpt: ...members. The Court CONFIRMS its Order of January 29, 2019 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; (5) the exten...

Excerpt: ... (See Goodall Decl., filed 5/15/19, at ¶ 2 & Ex. A.) Counsel sending the letter does not even appear on the caption page for Plaintiffs' filings in the case. There is no indication that counsel for Plaintiffs ever reached out to counsel for Caltrans by telephone or in any other way to determine when responsive documents would be produced or to ascertain the reason for the apparent delay in the production. Plaintiffs' contention that a meet and c...

Excerpt: ...sufficient to constitute a defense. (See Code Civ. Proc. § 438(c)(1)(A).) Defendant's statements that "I have a hard time paying them, that's why I go to debt settlement" and "I am on debt settlement but they need to wait for them to be paid" are 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,...

Excerpt: ... allegations are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (CRC, Rule 3.1324(a).) In addition, the moving party on a motion to amend must include a separate declaration that specifies: (1) the effe...

Excerpt: ...a] nonparty shall petition the court for leave to intervene by noticed motion or ex parte application." (CCP § 387(c).) "The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests." (Id.) "The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) [a] ...

Excerpt: ...was put on hold until June to allow him to attend occupational and physical therapy. (Id. ¶ 5 at 2.) Plaintiff has been diagnosed with chronic obstructive pulmonary disease, chemotherapy-induced neuropathy, stage III chronic kidney disease, asthma, and hypertension. (Id. ¶ 2 at 1.) Plaintiff also has a history of colon cancer, prostate cancer, and skin cancer. (Id.) While the deterioration of Plaintiff's health has been gradual and he has appar...

Excerpt: ...rs, class action settlements must be reviewed and approved by the Court. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646 ["The [trial] court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement"].) California follows a two-stage procedure for court approval: first, the Court reviews the form of the terms of the settlement and form of...

Excerpt: ... an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (CCP § 437c(f)(1).) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Id.) "[T]he party moving for summary judgment bears t...

Excerpt: ... Plaintiff filed its operative form Complaint on July 31, 2018, in which it pleaded common counts for open book account and account stated against defendant Kathy Zitani ("Defendant"), and prayed for damages in the amount of $7,458.38. Plaintiff made a prima facie showing that on some unspecified prior date, Defendant applied for and obtained a credit card account with Plaintiff ending in account number 6927 ("the Account"). (Stmt. of Undis. Mtr....

Excerpt: ..."), alleges that he was injured by an autistic client on November 14, 2016 in Room 33 at Skyline Senior High School ("Skyline"). Defendants allegedly failed to provide additional staff to protect other special education students present in Room 33 while he was working one-to-one with his assigned client. When the client became emotionally agitated, Plaintiff was allegedly forced to divide his attention between protecting other students and de-esc...

Excerpt: ...Plaintiff Yen H. Dang ("Plaintiff") on February 25, 2015, or alternatively summary adjudication as to each of the two causes of action therein: the First Cause of Action for Quiet Title and the Second Cause of Action for Declaratory Relief. As discussed below, BONYM is entitled to summary adjudication as to both causes of action and hence summary judgment as to the entire complaint. A. First Cause of Action The First Cause of Action, for Quiet Ti...

Excerpt: ...fendant failed to provide discovery responses in violation of the Court's March 23, 2018 and June 21, 2018 Orders. DISCOVERY ORDERS On December 11, 2017, Plaintiff served three sets of form interrogatories and three sets of demands for production on: (1) Dellesia Onifade, individually; (2) Dellesia Onifade, as administrator of the estate of Jerlyn Smith; and (3) Dellesia Onifade, as trustee of the Jerlyn Smith Trust. When Defendant failed to resp...

Excerpt: ...rance of the evidence that plaintiff Dolly Rizvi ("Plaintiff") is a party to a valid, enforceable, and irrevocable agreement to arbitrate the claims at issue in this action under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Rosenthal, 14 Cal.4th at 413.) Although MMV's managing member has candidly confessed that he cannot find a copy of the Employee Understanding Disclosure signed by Plaintiff, the facts described are sufficient to establi...

Excerpt: ...such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]") Plaintiffs Greg Harper and Barbara Horsting's (collectively, "Plaintiffs") verified Complaint against Defendant for breach of contract was filed on February 6, 2019. Plaintiffs allege that Defendant failed to maintain its sewage drain system in violation of a 1994 lease to rent a studio at the cooperative. As a resul...

Excerpt: ...Smith; and (3) Dellesia Onifade, as trustee of the Jerlyn Smith Trust. Plaintiff previously stipulated to an extension for Defendant's response to January 31, 2018 and then February 19, 2018. When Defendant still failed to respond, the parties participated in an informal discovery conference on March 6, 2018, and the Court ordered Defendant to respond on or before March 31, 2018. Defendant provided some discovery responses on March 30, 2018. With...

Excerpt: ...nformally. Plaintiff has agreed to limit the scope of Request No. 7 to the period from 2013 to 2018. Defendant has agreed to produce those warranty manuals for the Chevy Cruze after Plaintiff agrees to the terms of a Protective Order. The Court refers to pages 8, 9 and 12 of the May 20, 2019 transcript. 2. The Motion to Compel Defendant to Serve a Further Response to Request No. 10 is GRANTED. Plaintiff has agreed to limit the scope of Request No...

Excerpt: ...l 4, 2019. Colony seeks only to seal five pages (pages 201 through 205 of the Opgenorth Declaration) containing Colony's Claim Handling Guidelines. Colony provides evidence that the information in these pages is not generally known to the public or to Colony's competitors in the insurance market. Colony views these guidelines as part of its competitive advantage for providing efficient customer service in competition for insurance customers. Colo...

Excerpt: ...ent was expressly conditioned on court approval by the bankruptcy court, which it granted. Nevertheless, Anabo and PI2016 did not close the transaction, and Anabo received court approval to sell the Property to Defendants Mansour Ghanbari and Danny Leung. Defendant Tony Anabo demurs to the Third Amended Complaint on the grounds that it still fails to state a cause of action. Defendants Ghanbari and Leung demur on grounds that they are not proper ...

Excerpt: ...§ 437c(b)(1), which requires a "separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." The failure to comply with this requirement "may in the court's discretion constitute a sufficient ground for denial of the motion." (C.C.P. § 437c(b)(1); see also United Cmty. Church v. Garcin (199...

Excerpt: ... an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (CCP § 437c(f)(1).) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Id.) "[T]he party moving for summary judgment bears t...

Excerpt: ...nder these facts, trial preference pursuant to Code of Civil Procedure section 36(a) is warranted. The Court directs the parties to meet and confer before the hearing regarding the following issues on which they are to update the Court, and/or report whatever agreements they may have reached, at the hearing: 1) The completion, or status and anticipated completion, of Plaintiffs' depositions; 2) A trial date 3) Whether all parties will stipulate t...

Excerpt: ...ative Fault, the Fifth Cause of Action for Contribution, and the Sixth Cause of Action for Declaratory Relief, as unopposed. (See Cross-Complainants' opposition brief at page 1:16-18.) As to the First Cause of Action for Express Contractual Indemnity, the Motion for Summary Adjudication is GRANTED. Deacon and LaPlante seek equitable indemnity for the injuries claimed by Plaintiff Calvin Wallace ("Plaintiff") pursuant to a Standard Form Subcontrac...

Excerpt: ...erence. Plaintiff's medical records demonstrate that she has mesothelioma, but they provide no useful information about her prognosis, anticipated treatment, or any potential limitations on her ability to participate in this litigation. In addition, at her deposition n March, she testified that her last CAT scan was clear and she didn't now if she would need more treatments. While an attorney declaration may suffice in a Code of Civil Procedure s...

Excerpt: ... his claims in the Third Amended Complaint. See CCP § 391.3(a); and Golin v. Allenby (2010) 190 Cal.App.4th 616, 640-641. The declarations of attorney C. Hay-Mie Cho and Defendant Smith, which contain numerous hearsay statements, are not sufficient to authenticate the many documents Defendants ask the Court to consider. The two-paragraph letter of Ann Stallcup, Parole Case Records Administrator, dated May 7, 2019, does not sufficiently buttress ...

Excerpt: ...ing to keep two distinct and different transactions apart. In addition, consolidation could lead to prejudice for the parties as the juries form opinions arising from one transaction which includes additional third parties and transpose those opinions onto the second transaction which includes other and distinct third parties. PLEASE NOTE: The above tentative ruling will automatically become the court's final order on June 13, 2019, unless, by no...

Excerpt: ...019. The Motion to Compel is denied because Plaintiffs failed to file the motion within forty five (45) days of the response date. See CCP § 2030.300(c); and Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685. Plaintiffs' Motion to Compel was filed on May 21, 2019. Plaintiffs did not provide any evidence to show that Defendant granted counsel an extension of the 45-day deadline. Defendant's request that the Court order Plaintif...

Excerpt: ...es of action. Due to a continuance and judicial reassignment, this demurrer was not heard until April 2, 2019, and was taken under submission. On April 11, 2019, the Court issued an order sustaining without leave to amend the Demurrer as to the First through Fourth Causes of Action, and sustained with leave to amend the Demurrer as to the Fifth through Eighth Causes of Action. At issue here is the First Cause of Action for accounting. In the Apri...

Excerpt: ...ndment of any pleading. . . ." (CCP sec. 576.) The policy favoring leave to amend is strong. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760-761.) Here, the main purpose of Oakland Unified's proposed amendment is to add to the FACC as cross- defendants: (1) Gateway Insurance Company, Inc., doing business as Alano Insurance Company, Inc. ("Alano"), and (2) Michael G. Jordan, an individual. Alano is allegedly an insurer who has or had a ...

Excerpt: ...nal Infliction of Emotional Distress dated December 20, 2018. The original hearing dates was August 23, 2018. The hearing date was continued to October 30, 2018, after the Court granted Cross- Defendant's Ex Parte Application for Relief pursuant to CCP § 473(b). On October 30, 2018, the Court continued the hearing to December 13, 2018 due to the parties' failure to comply with their procedural obligations. The Court takes notice of its order of ...

Excerpt: ...e First Amended Complaint. Defendant County answered the First Amended Complaint on September 2, 2015. On February 2, 2016, the Court granted the County's unopposed Motion for Judgment on the Pleadings without leave to amend. The County asserted that Plaintiff could not proceed because it had not complied with its obligation to present a government tort claim pursuant to Govt. Code § 911.2. The Court declined to consider Plaintiff's opposition f...

Excerpt: ... facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been gi...

Excerpt: ...Plaintiffs appear to allege that Franklin violated these statutory provisions by (1) recording a Notice of Default and Substitution of Trustee pursuant to a "fraudulent and forged Deed of Trust" based on a misrepresentation that it had a beneficial interest in the notes secured by the subject Deed of Trust (see Second Amended Complaint, paragraphs 50-53 and 62), and (2) failing to contact Plaintiffs prior to recording a Notice of Default, purport...

Excerpt: .... In addition, Plaintiff's entire argument (Plaintiff not having filed a memorandum of points and authorities in support of her application) appears to be based on the contention that the real property that is the subject of this action was never validly transferred to her, because the grant deed transferring title to her was not signed by the actual property owner. If the subject property was never validly transferred to Plaintiff, she has no st...

Excerpt: ...ranted only if the entire "action has no merit" - i.e. where "there is no triable issue as to any material fact and ... the moving party is entitled to judgment as a matter of law" as to the entire complaint. (C.C.P. § 437c(a) and (c).) "On a motion for summary judgment, if a single issue of fact is found, the trial court is powerless to proceed and must allow such issue to be tried." (Lynch v. Spilman (1967) 67 Cal.2d 251, 271.) Because summary...

Excerpt: ...fendants oppose. Cross-Defendant Michael Vinding specially moves to strike Defendants' Cross- Complaint as a strategic lawsuit against public participation ("SLAPP") under Code of Civil Procedure section 425.16. Defendants oppose. For the reasons discussed below, Defendants motion for reconsideration is DENIED, HOA's demurrer is OVERRULED and its alternative motion to strike is DENIED. Vinding's special motion to strike is DENIED AS MOOT and Defe...

Excerpt: ...t on January 9, 2019. Plaintiff was 64 years old when the Complaint was filed. He is African American. Plaintiff alleges that he worked at the Bear's Lair in Berkeley from August 28, 2017 until he was terminated on February 23, 2018. Compass Group USA, Inc., doing business as Chartwells Food Service, provides student dining service to the University of California pursuant to contract. Plaintiff worked as a bartender and waiter at the Bear's Lair....

Excerpt: ...5 Amador St., Hayward. Prior to the hearing, counsel shall telephonically confer to address, among other things, the court's following inclinations or observations about the disputes raised in the motion. (1) Plaintiff's opposition memorandum focuses largely on the asserted "tax return privilege" described in Webb v. Standard Oil Co. of Cal. (1957) 49 Cal.2d 509, 513- 514. This appears to be implicated as to RPDs Nos. 55 (which seeks the work pap...

Excerpt: ...is GRANTED for the convenience of witnesses under section 397, subdivision (c). Best Buy is ORDERED to pay the costs of transfer. LEGAL STANDARDS On timely motion before the deadline for a defendant's responsive pleading, the Court must transfer venue if it is "not the proper court" to hear an action under the venue statutes. (Code of Civil Procedure ["CCP"] § 396b.) The Court has discretion to order that the place of trial be changed to another...

Excerpt: ... capacity to sue for damages in California. See CCP § 430.10(b). The Demurrer is overruled because the Court is restricted to the facts set forth in the Complaint and facts that are the proper subject of judicial notice. See CCP § 430.30(a). The Court is required to accept Plaintiffs' well-pled factual allegations as true at the pleading stage, but not their contentions, deductions or conclusions of law or fact. See Aubry v. Tri-City Hosp. Dist...

Excerpt: ...price, or a part thereof, is paid by one person and the title is taken in the name of another." (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) In standard trust terminology, plaintiff Sepi Day ("Plaintiff"), as the payor, is the beneficiary, while defendant Dariush Fakhrabadi, the legal owner of record, is the trustee. Plaintiff did not cite and the Court has not found any authority by which a trustee's spouse is automatically deemed a trustee...

Excerpt: ...connection between the negligent conduct and the resulting injury" and the "actual loss or damage resulting from the professional's negligence." (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) In its order of April 9, 2019, the court sustained a demurrer to a similar cause of action in the First Amended Complaint ("FAC"), with leave to amend on the same basis. Though the SAC includes additional allegations in this regard, the Fifth Cause of Action rema...

Excerpt: ...ohibiting multiple simultaneous amendments. Since an amended complaint always supersedes all prior complaints, the Second Amended Complaint ("SAC") will be immediately superseded by the Third Amended Complaint ("TAC"). (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130- 1131.) Therefore, the TAC will stand as the sole operative complaint in this action. (Id.) Defendant Nutrakey, LLC ("Defendant") did not show that t...

Excerpt: ...vailing party" includes "the party with a net monetary recovery." (CCP § 1032(a).) "If any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties . . ." (Id.) A plaintiff that prevails under the Song-Beverly Consumer W...

Excerpt: ...g California consumers to acrylamide through animal cracker products 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 proposed settlements and consent judgments with Fantasy Cookie and PANOS. The Court has a duty in reviewing "Proposition 65 settlement[s] brought by a private plaintiff . . . to safeguard the...

Excerpt: ...uary 8, 2019. (See Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal. App. 4th 265, 274.) Defendants' Motion is DENIED as to the alter ego allegations in the first through eighth and twelfth causes of action. Paragraph 12 of the SAC alleges several ultimate facts phrased in terms of various alter ego factors. Conclusory pleading of the alter ego factors has been held to be sufficient. (Ruther...

Excerpt: ...led until it is updated to comply with this Court's prior orders. Plaintiff received leave to amend her Complaint, and indeed was ordered to do so, pursuant to the demurrer and motion to strike of Defendant Burger King Corporation ("BK"), which were set for hearing in this Court on June 6, 2019. The First Amended Complaint that Plaintiff proposes as part of the present Motion, which she prepared prior to the hearing date on BK's demurrer and moti...

Excerpt: ...strictive means exist to achieve the overriding interest." (Cal. Rules of Court, rule 2.550(d).) In particular, Defendant has an overriding interest in its commercially sensitive, proprietary, and confidential business data which it disclosed in order to help the Court assess the reasonability of the parties' settlement. (See cf. Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283.) It is clear that the parties have a...

Excerpt: ...uest for the Production of Documents, Set One, numbers 3 on the grounds that the request is overly broad, seeks information protected by attorney work-product privilege, the attorney-client privilege, violates the rights of privacy of the Plaintiff's insured. Mid-Century argues that it does not know what is meant by the term "claims file" and that it would be overly burdensome to produce a privilege log detailing all of the privileged material co...

Excerpt: ...ce for various material facts in in support of the opposition. Defendants have objected to the offers of proof on various grounds. However, the filing of Mr. Silva's deposition transcript would appear to render those objections moot. In any event, the Court is not in a position to know how the changes in the evidence affect the parties' respective arguments and the material facts upon which they rely. For this reason, the Motion is continued to p...

Excerpt: ...of its insured, the Salwan Living Trust ("Salwan"). (FAC, ¶¶ 2, 6, and 27- 44.) Salwan owns real property at 27389 Tyrrell Ave., Hayward, adjacent to real property owned by HUSD at 27211 Tyrrell Ave., Hayward, which is used as a Student Information & Assessment Center ("SIAC"). (Id., ¶¶ 2 and 7.) On September 14, 2015, a fire occurred at the SIAC, damaging Salwan's property and causing CCIC to reimburse Salwan for losses, under the terms of a...

Excerpt: ...iled on May 31, 2019 and June 7, 2019, reporting on the status of the parties' meet and confer efforts. Based on the emails from Eduardo Robles dated May 20, 2019, and from Candice Hamant dated May 30, 2019, it appears that CBRE is in the process of assembling what Plaintiffs characterized as "[a]ll work orders/emails for the Saratoga Center - Building Two located at 5934 Gibraltar Dr., Pleasanton, CA 94588 for 2014 to 2016, dealing with the bath...

Excerpt: ...nstrated that the parties executed a written "Release Agreement," signed by Plaintiff on May 2, 2018 and signed by Defendant on May 9, 2018 for the settlement of this case. (See the Declaration of Laszlo Ladi ("Ladi Decl."), at ¶ 3, "Release Agreement.") Pursuant to the terms of the agreement, Ms. Finley was to provide Defendant with an executed Request for Dismissal in exchange for Defendant providing Plaintiff 120 days to sell her home. (Ladi ...

Excerpt: ...Cal. R. Ct., Rules 3.1110(a), 3.1112(a)-(b), 3.1113(b).) "The court may construe the absence of a memorandum as an admission that the motion . . . is not meritorious and cause for its denial[.]" (Cal. R. Ct., Rule 3.1113(a).) As a threshold issue, Defendant has failed to comply with the procedural requirements for the Motion and on that basis, the Court DENIES Defendant's Motion. STANDARD OF LAW Defendant's Motion is essentially a motion to remov...

Excerpt: ...ocedure section 397 and California Government Code section 12965(b)." In the supporting memorandum, Defendants include a paragraph arguing that the "convenience of witnesses and the ends of justice would ... be promoted by the change to Stanislaus County" under Code of Civil Procedure ("C.C.P.") section 397(c), but this is not stated as a separate ground for the motion in the notice of motion. (See Notice of Motion, p. 2; Memo., p. 7.) As to the ...

Excerpt: ...703 Mathew Street, Berkeley, California (the "Property"), and for a stay until the defendants "cure and correct" the alleged violations, is DENIED. In deciding whether to issue a preliminary injunction, the court weighs two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits; and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. The court's determination ...

Excerpt: ...he trial date. (California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 22 [explaining initial discovery hold]; Code Civ. Proc. § 2024.020.) In interpreting the Act, the Court must keep the "prodiscovery policies of the statutory scheme firmly in mind . . . . [and] may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature[.]" (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)...

Excerpt: ...il Procedure ("CCP") section 438(c)(1)(B)(ii) "performs the same function as a general demurrer[] and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed." (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064; see Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767- 1768.) Like a general d...

Excerpt: ...t seq.) and the derivative claims/remedies in causes of action two (accounting) and four (injunction), implicate the California Public Utilities Commissions' exclusive jurisdiction and are thus barred by Pub. Util. C. § 1759. (See Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256; San Diego Gas & Elec. Co. v. Superior Court (Covalt) (1996) 13 Cal.4th 893; Davis v. S. California Edison Co. (2015) 236 Cal.App.4th 619.) Although the scope of t...

Excerpt: ...) 134 Cal.App.4th 997, 1006.) Plaintiffs allege harm in the form of diminution in value of their taxi medallions, caused by Uber's unfair competition, but seek disgorgement of Uber's profits, and fail to allege facts showing that Plaintiffs ever possessed, or had a vested ownership interest in, the profits received by Uber. (Id. at 1016 [diminution in value of stock held by plaintiffs due to misrepresentations of defendant was not recoverable as ...

Excerpt: ...) 134 Cal.App.4th 997, 1006.) Plaintiffs allege harm in the form of diminution in value of their taxi medallions, caused by Uber's unfair competition, but seek disgorgement of Uber's profits, and fail to allege facts showing that Plaintiffs ever possessed, or had a vested ownership interest in, the profits received by Uber. (Id. at 1016 [diminution in value of stock held by plaintiffs due to misrepresentations of defendant was not recoverable as ...

Excerpt: ...arty to meet and confer by telephone prior to filing the demurrer and file and serve a declaration with the demurrer regarding the meet and confer process and outcome. Both parties should comply with the statutory requirements in future. The demurrer to Plaintiffs' first cause of action for interference with prospective economic advantage is SUSTAINED WITH LEAVE TO AMEND, for Plaintiffs to allege, if they may do so in good faith, an existing econ...

Excerpt: ...e" that a different result would have been reached if he had been permitted to effectively cross-examine Roe."; (2) The use of different investigators to evaluate the credibility of Roe and Doe was structural error. When a criminal or civil case is tried to the court, then the judge cannot change in the middle of the trial. ... The finding of structural error compels a finding that the due process violation[] was prejudicial."; and (3) The use of...

Excerpt: ...rm is safer than other automobile transportation services, that riders do not have to tip their Uber drivers because the tip is included in the fare, and that Uber stated it could pick up and drop off passengers at San Francisco International Airport ("SFO") and Los Angeles International Airport ("LAX") when they did not have legal authorization to do so. Plaintiffs have testified that, since Uber entered the market, they now work longer hours to...

Excerpt: ...enged litigation tactic is the "making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected." (CCP § 128.5(f)(1)(B).) A party moving for sanctions under Section 128.5 must serve their motion papers as usual, but shall not file them with the Court for 21 days or another time set by Court order. (Ibid.) If, after the safe har...

Excerpt: ...Decl. Ex. A; 3. Decl. of W. Stern Supp. Def.'s Oppn. to Class Certification ["W. Stern Decl."], Ex. EE [Decl of J. Stricchiola]; 4. W. Stern Decl. Ex. CC [Declaration of Terry Lloyd]; 5. Opposition Brief, portions of p.9 ln. 16, p.10 ln. 11, and p.14 lns. 4-5; and 6. Pls.' Objs. to Def.'s Evid. at Class Certification, Obj. 19 at p. 42 lns. 25-27, and p.43 lns. 2-11, 14-15, 17-18, and 19-23. The Court finds that the documents submitted in oppositi...

Excerpt: ...for motions to strike. Some aspects of the proposed motion to strike do not appear to have much merit. For example, the question of puffery is a question of fact that is rarely disposed of at summary adjudication, let alone on the pleadings. Similarly, whether a statement is "false and misleading" may not be amenable to resolution at the pleadings stage. In addition, the court questions how the proposed motion will advance these proceedings if it...

Excerpt: ...he allegations." (C.C.P. §§ 431.10(b)(3), (c).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (C.C.P. § 437.) WHETHER SAFETY CLAIMS ARE PUFFERY AS A MATTER OF LAW. Defendant seeks to strike paragraphs 34-50, which concern "driver safety," on the grounds that the alleged statements in paragraphs 34-43 constitute puffery as a matte...

Excerpt: ...as appeared in the action but has not paid the complex case fee is required to pay the fee within ten days of the filing of this order. The complex case fee is $1,000 for each plaintiff or group of plaintiffs appearing together and $1,000 PER PARTY for each defendant, intervenor, respondent or other adverse party, whether filing separately or jointly, up to a maximum of $18,000 for all adverse parties. All payments must identify on whose behalf t...

Excerpt: ... of Civil Procedure ("CCP") section 998 (hereafter, "998 Offers"). When a defendant makes a 998 offer, the Plaintiff rejects the offer, and the Plaintiff fails to receive a more favorable judgment, then the Court has discretion to award, "in its discretion, . . . a reasonable sum to cover postoffer costs of the services of [outside] expert witnesses . . . actually incurred and reasonably necessary [to the defendant's case] . . . ." (CCP §998(c)(...

Excerpt: ...ix 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 injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 677-78.) The primary purpose of a preliminary injunction is to preserve the status quo pending a trial on the merits. (O'Connell v. Superior Court (2006) 141 Cal. App. 4th 1452, 1472; Cox Cable of San Diego v. Bookspan (1987) 195 Cal App.3d ...

Excerpt: ...ere 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 April 19, 2019, the court stated that the supplemental papers filed on April 2, 2019, and April 9, 2019, assisted the court in that analysis but remained "unclear as to whether and to what extent the water intrusion issue (or other issues that Plaintiff contends pose an immediate ...

Excerpt: ...ddresses the merits despite the argument by Plaintiffs Yushan Huang aka Stacy Huang ("Stacy") and Joshua Hsia ("Joshua") (collectively "Plaintiffs") that Defendants did not engage in sufficient "meet and confer" efforts under C.C.P. § 430.41. The court is not persuaded that the meet and confer efforts were deficient. (See also C.C.P. § 430.41(a)(4).) The court disagrees with Plaintiffs' argument that the demurrer exceeds the 15- page limit. As ...

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

Excerpt: ... failed to take any appropriate action to remedy the danger posed by those trees. One of those trees then fell on the roof of the home of Plaintiff's insured, causing damage of at least $761,000. If those allegations are true (as the Court must accept when ruling on a demurrer), Plaintiff has adequately alleged claims for negligence, nuisance, trespass, and equitable subrogation. Any evidence supporting Plaintiff's claims (including, e.g., eviden...

Excerpt: ...applies to each of Victoria Alavarez's causes of action. Procedurally, the demurrer is improper because FPI does not seek to dispose of any single cause of action. FPI seeks an order determining the temporal scope of Victoria Alavarez's causes of action. The demurrer is therefore in the nature of a motion to strike. The court will construe the demurrer as a motion to strike. Procedurally, the motion to strike is directed to the claims of Victoria...

Excerpt: ...ence will be required to justify a court in setting aside the default." (Id.) "Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default." (Elston v. City of Turlock (1985) 38 Cal. 3d 227, 233-234.) Here, the court finds the evidence sufficient to meet this burden. (See Decls. of Richard Chao Hen Wahng, Heather Norton and Tom...

Excerpt: ...man, Patricia A. Morris, Bayside Realty Group, which was granted in part prior to the consolidation of the two cases. Plaintiff Stegman brings the motion on the grounds that he is now a party to the case and argues that this presents new facts and circumstances that would merit reconsideration. Plaintiff is required to present evidence that reconsideration should be granted due to the existence of new or different facts, circumstances or law. See...

Excerpt: ...other things, the following: (1) The court would appreciate preparation of an exhibit comparing: (a) the English translation of the letter of Fei Liu ("Liu") as provided by Plaintiffs' counsel and the correct English translation as based on Liu's deposition testimony, supported by citations to the page and line numbers in Liu's deposition testimony in which he provided the correct translation; and (b) the English translations of the Liu declarati...

Excerpt: ..., among other things, the following: Preliminarily, as the court observed at prior hearings in this case, the court does not believe it has presided over any other case in which so many motions for sanctions have been filed. It appears that the parties have spent more time and resources on motions for sanctions than on any other facet of the case. The court does not wish to encourage the filing of additional motions such as this, as the court bel...

Excerpt: ...nt" as referenced in the objections to Form Interrogatories. In reviewing the responses to the Request for Admission, there does not appear to be any request in dispute and Plaintiff does not identify any specific deficiencies with the responses. Defendant is to provide further responses to the Request for Production of Documents, Set One, and Form Interrogatories, Set One and produce documents for inspection by June 21, 2019. Due to new counsel ...

Excerpt: ...no recommendations for future treatment (see Plaintiff's deposition at pages 91 and 93-94; (2) Plaintiff's failure to mention any ongoing problems with his ribs at his first independent medical examination by Dr. Mathias Masem on December 15, 2018 (see Dr. Masem's deposition at pages 17-18 and 20-21); and (3) Plaintiff's production of a report by Dr. Jacob Rosenberg dated March 18, 2019 indicating (on page 6) that Plaintiff's "most significant fu...

Excerpt: ...nuing the trial date.) Crossroads has not shown good cause to reopen discovery as to the financial condition of Plaintiff and Cross-Defendant Triangle Associates Inc. ("Triangle"), pursuant to Code of Civil Procedure section 2024.050(b). Specifically, Crossroads has not demonstrated why it could not have sought discovery of this information prior to the discovery cutoff. Crossroads has asserted claims against Triangle for fraud since it filed its...

Excerpt: ...iding interest that overcomes the right of public access to the record; (2) The 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) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest." (CRC 2.550(d).) The motion must be supported by a "declaration containing facts suf...

Excerpt: .... § 761.020(d).) It includes legal conclusions of civil conspiracy, but does not allege facts that constitute such a claim. (See Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316-317.) The partition cause of action does not allege all essential elements. (Code Civ. Proc. § 872.230.) It is possible that some or all of these defects may be curable. The Court will therefore grant Defendant leave to amend on this fir...

Excerpt: ...ode section 3294(b), as discussed below. Should Plaintiff find it appropriate to add additional causes of action to help support its claims for punitive damages, that is permissible under this order; however, without a separate order from the Court, Plaintiffs may not add causes of action unrelated to punitive damages or new defendants. This action arises out of an alleged incident that occurred at a construction site at 3093 Broadway in Oakland,...

Excerpt: ...nterrogatories, Set One (Nos. 1-33), Form Interrogatories, Set Two (No. 17.1), and Request for Production of Documents, Set One (Nos. 1-46, 49, 50), no later than December 18, 2018. (Code Civ. Proc. §§ 2030.300(a), 2031.310(a), 2033.290(a).) Plaintiff's objection-only responses were "evasive and quibbling." (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617.) Plaintiff's objections are meritless. Defendant's request for sanctions...

Excerpt: ...t 3:00 p.m., in Department 517. On March 26, 2019, the Court continued the hearing on Plaintiff's Motion to Compel and ordered the parties to comply with their statutory obligation to make a reasonable and good faith attempt to resolve all of the disputed issues. See CCP §§ 2031.310(b)(2) and 2016.040 (facts disclosing that a reasonable and good faith attempt at an informal resolution was made must appear in the meet-and-confer declaration). Th...

Excerpt: ...eventh Cause of Action for Wrongful Termination in Violation of Public Policy and an Eighth Cause of Action for Unfair Business Practices. The EFI Dispute Resolution Process Agreement ("the Agreement") attached as Exhibit C to the Declaration of Beverly Rubin, EFI's Vice President of Human Resources, states clearly that neither side has the right to compel arbitration until they have attempted to resolve the dispute through mediation. The parties...

Excerpt: ...this matter . . . and must motion the court to dismiss without prejudice." Dismissal of the Entire Action without prejudice was entered on May 8, 2019. Based on the foregoing, Defendant's motion to compel is DROPPED. Defendant's request for monetary sanctions is DENIED. Even if the request for sanctions could survive the dismissal of the entire action, which Defendant has not argued, the Court finds the circumstances of the dismissal, which was s...

Excerpt: ...ave filed a Notice of Related Case pursuant to Rule of Court 3.300(b). The Court was only made aware of Defendant Wong's earlier lawsuit against the Homeowners Association when it reviewed Plaintiff's papers in support of the Motion for Summary Judgment. The parties need not file the Notice of Related Case at this juncture as the Court has already dealt with several motions and set a trial date of September 23, 2019. The Motion for Summary Judgme...

Excerpt: ... is specifically named in the Complaint only as to the First Cause of Action for Negligence I and the Second Cause of Action for Products Liability. Defendant has now moved for summary judgment. DEFENDANT'S BURDEN OF PRODUCTION Defendant did not meet its initial burden of production. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 848-855; Code Civ. Proc., § 437c, subd. (p)(2).) Defendant targeted the threshold exposure subelement ...