Excerpt: ... only, as unopposed. (See opposition brief at page 8:1-6.) The demurrers to the First Cause of Action for Breach of Settlement Agreement, the Second Cause of Action for Violation of Business & Professions Code § 17500, the Third Cause of Action for Violation of Business & Professions Code § 17200, the Fifth Cause of Action for Fraud, the Eighth Cause of Action for Declaratory Relief are all OVERRULED. As to each of these claims, DCG argues that...

Excerpt: ...Intentional Infliction of Emotional Distress; the Fourteenth Cause of Action for Negligent Infliction of Emotional Distress; the Fifteenth Cause of Action for Declaratory Relief; and the Sixteenth Cause of Action for Fraudulent Conveyance. The basis for Piterman's motion is Section 11/5/1 of the Operating Agreement for KD Pebble LLC ("the Agreement"), which provides that any action to resolve any claim arising out of or related to the Agreement s...

Excerpt: ...nce policies such as the one he wrote for Plaintiff. Plaintiff alleges that Defendant Slaughter knew the property for which she sought insurance was used in her photography business, and also knew, based on training provided by CSAA and his knowledge of CSAA's underwriting rules, guidelines, and forms that he needed to include an additional form to the policy to insure business property for an amount in excess of $2,500. Plaintiff alleges that De...

Excerpt: ...pervision), the Fourth Cause of Action for Violation of Code of Civil Procedure § 1159 (Forcible Entry), the Fifth Cause of Action for Trespass, and the Sixth Cause of Action for Nuisance are all SUSTAINED, WITHOUT LEAVE TO AMEND. Each of these causes of action is premised on the theory that Plaintiff Jamal Mansuri ("Plaintiff") had a leasehold interest in the business he operated at the El Cerrito Plaza BART station. But as Plaintiff's counsel ...

Excerpt: ...otkin, and Gary Plotkin (collectively, "Survival Action Plaintiffs") are GRANTED WITHOUT LEAVE TO AMEND. Defendants' Motions for Judgment on the Pleadings re: Plaintiffs' Tenth Cause of Action for Intentional Infliction of Emotional Distress in TAMC as Adopted by Plaintiffs Benjamin Langfur, Adam Kennon, Samuel Maxwell, Andrew Ruiz, Michael Russell, Anthony Perrault, Sadao Dennis, Jose Avalos, Carmen Brito, and Nicole Kelber (collectively, "Indiv...

Excerpt: ...500.000 for the class and an additional up to $12,000,000 in fees and costs for counsel, for a potential total of $96,500,000. There will be no service awards for the named class representative. $500,000 is allocated to settlement administration costs. The settlement was mediated with the assistance of Judge Maria Elena-James (Ret). The court gives "considerable weight to the competency and integrity of counsel and the involvement of a neutral me...

Excerpt: ...at customer left the meat department at 12:12 p.m., and Plaintiff slipped in the sugar 22 seconds later. (See Safeway's Separate Statement Facts ("SSF") Nos. 3-6 and the evidence cited in support.) Where, as here, a plaintiff relies on a property owner's failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing the owner had notice of the defect in sufficient time to correct it. (See, e.g., ...

Excerpt: ... of action. A. Legal Standard for Summary Judgment A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a...

Excerpt: ...of Justice, by January 24, 2020. At the debtor's examination held on October 29, 2019, Rajesh Puri ("Puri") appeared for Judgment Debtor Yaana. Puri did not produce documents sought by MacFarlane and refused to answer numerous questions. MacFarlane seeks an order scheduling a further debtor's examination, to compel Yaana to produce additional documents, as set out in the Separate Statement of Items in Dispute at the examination, and to compel Yaa...

Excerpt: ...t made the required affirmative showing of good cause necessary to continue the trial date. (See Cal. R. Ct., Rule 3.1322(a) ["[T]he dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain."]; Cal. R. Ct., Rule 3.1322(c) ["[C]ontinuances of trials are disfavored[.]"].) Among other things, the present trial date in this action was set on April 17, 2019, and Defendants have not demonstrated to ...

Excerpt: ...Ply Gem's motion is not properly before the court because the parties stipulated that discovery disputes would be heard by Bruce Edwards, as discovery referee, first, before seeking relief from the court. Plaintiff cites a Stipulation filed May 15, 2019, appointing Bruce Edward of James as Case Administrator/Discovery Referee ("Referee"). The Stipulation states that the duties and powers of the Referee will be determined by agreement of the parti...

Excerpt: ... products manufactured or supplied by defendants, including A-L. Decedent was allegedly exposed to asbestos because of asbestos dust carried home on the clothing of his parents, Jorge and Alysa Perreras. For the reasons discussed below, A-L's motion is GRANTED as a motion for summary judgment, and A-L is ordered to prepare a proposed judgment of dismissal. LEGAL STANDARDS The purpose of summary judgment and adjudication procedures is to allow thi...

Excerpt: ... conditional class certification for purposes of settlement. Plaintiffs also seek court approval of claims raised under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Labor Code §§ 2698 et seq.). This motion was set for hearing on October 30, 2019, but was continued to this date to allow the parties an opportunity to address concerns with the form of notice and contents of the proposed settlement agreement. The parties have subm...

Excerpt: ...d the PARTIES ARE ORDERED TO APPEAR. LEGAL STANDARDS The purpose of summary adjudication procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) A party may move for summary ad...

Excerpt: ...ter. Plaintiff has objected to the video and screenshots based on lack of foundation and proper authentication. That objection appears to be meritorious. Safeway's counsel Kerri Johnson fails to establish any personal knowledge that the video and screenshots attached to her declaration accurately reflect the accident scene at the time indicated. The fact that the video and screenshots were produced in discovery is not sufficient to support their ...

Excerpt: ... Plaintiff alleges that Fischer was his realtor in that transaction. On February 27, 2017, Plaintiff signed an Exclusive Buyer Representation Agreement ("the Agreement") that provides, at Section 9(B), that it "shall be governed by and interpreted in accordance with the laws and in the courts of the state of Tennessee." Although a forum selection clause does not, ipso facto, defeat jurisdiction, it is one factor to consider in determining whether...

Excerpt: ...me Property Purchase Agreements and Joint Escrow Instructions ("the Agreements") with Defendants, both dated December 11, 2017, for the purchase of real property located at 1241 International Boulevard and 1301 International Boulevard in Oakland. The parties soon became embroiled in a dispute concerning whether Plaintiffs had made their initial contract deposits in a timely fashion. Defendants attempted to cancel the escrows for both properties, ...

Excerpt: ...overnment Code section 820.2, "a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him...." BART moves to bifurcate the trial of its immunity defenses under section 845 and 820.2 from the trial of BART's liability. Under Code of Civil Procedure section 598, the court may order the trial of one issue to be held before the trial of any ...

Excerpt: ...s by appearing and arguing the merits of the motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Plaintiff contends that the motion was filed without a declaration and there are no exhibits. However, counsel has now filed a Declaration on Form MC-052, and there is no requirement for exhibits. Counsel has provided a sufficient basis to withdraw based on Plaintiff's failure to pay her monthly installment fees over a period of months. Plainti...

Excerpt: ...") of DEHP. Plaintiff asserts that Defendant's products as tested contained substantially more than 1,000 ppm of DEHP. Defendant also agrees to provide a warning if its reformulated products contain more than 1,000 ppm of DEHP. The parties have not reached agreement with regard to the presence of nickel and lead in Defendant's products, or Defendant's alleged failure to provide the required warning, so Plaintiff is deemed to have withdrawn the cl...

Excerpt: ...sul has not filed opposition to BART's motion for terminating sanctions scheduled for December 13, 2019. The ruling on the motion for terminating sanctions may moot this motion for summary judgment/summary adjudication. The motion for summary judgment against Plaintiffs Russell Stapp, Patricia Stapp, and Amanda Stapp (collectively "Plaintiffs" unless otherwise indicated) is DENIED. In this action, Plaintiffs allege that on April 22, 2017, they we...

Excerpt: ...of consortium. The Complaint also demands punitive damages. Four of the Complaint's causes of action are brought against the moving Defendant: negligence, strict liability, negligent misrepresentation, and fraud by nondisclosure. Defendant now seeks to summarily adjudicate the causes of action for negligent misrepresentation and fraud by nondisclosure. Defendant also seeks to summarily adjudicate Plaintiffs' request for punitive damages. Defendan...

Excerpt: ...Act of 2004 ("PAGA") (Lab. Code § 2698 et seq.). Plaintiff's attorney represented that a copy of this motion was transmitted to the LWDA on October 4, 2019. (Declaration of Justin F. Marquez ["Marquez Dec."] ¶ 8, Ex. B.) The LWDA has not appeared in this action to offer comments on, or objections to, the proposed settlement. In her First Amended Complaint, Plaintiff also purports to state individual claims for violations of various Labor Code s...

Excerpt: ...ions 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 notice has been taken." (Id.) "As a general rule in te...

Excerpt: ...ersonal representative of the Estate of Eugenie VanMiller, or both. If Plaintiff is asserting her negligence claim as a survival claim on behalf of the Estate of Eugenie VanMiller, Plaintiff must comply with Code of Civil Procedure section 377.32. Likewise, if she is asserting her elder abuse claims on behalf of the Estate of Eugenie VanMiller pursuant to Welfare & Institutions Code section 15657.2(d)(1), she must expressly allege that she is the...

Excerpt: ... 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] given."].) "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 actio...

Excerpt: ...s complaints of the flooding of the whole block of Ocean Avenue, which he purports is due to the upward slanting of Vallejo Street. (FAC ¶ 1.) Plaintiff claims that as a result, the foundation of his home has been undermined and his property has been deemed unfit for habitation. (Id. ¶ 4.) Plaintiff asserts that Defendant has intentionally or negligently failed to relieve the flooding in the area by failing to install a dedicated storm drain. (...

Excerpt: ...nstrate any delay in prosecution by Plaintiffs. Assuming arguendo that the Court has the "inherent authority" to dismiss a case for other reasons, in the absence of a motion based on established statutory procedures such as, e.g., a motion for summary judgment or demurrer, the Court declines to exercise that inherent authority in this case. Even if the Court were inclined to exercise its inherent authority to consider dismissing this case in the ...

Excerpt: ...en." (Cal. Rules of Court, Rule 2.550(c).) "The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) [t]here exists an overriding interest that overcomes the right of public access to the record; (2) [t]he overriding interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) [t]he proposed sealing is...

Excerpt: ...wever, the Court is not convinced that satisfactory amendment in regards to punitive damages is not possible. Accordingly, as to the Moving Defendants, the motion to strike is GRANTED WITH LEAVE TO AMEND. Plaintiffs must file an amended complaint no later than January 2, 2020. "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: . . . [s]trike out any irrelevant, false, or improper matter inserted ...

Excerpt: ...omplaint fails to state a cause of action upon which relief can be granted against Defendant Ukoha-Ajike. (See CCP § 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] given."].) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal....

Excerpt: ...ighland Hospital to visit Naomi Schneider, the mother of Mira and Lia, on March 24, 2019. Plaintiffs do not allege that Germon was a patient or hospital employee. Instead, Plaintiffs simply allege on information and belief that Germon had been "in the hospital at some point prior to the attack." Plaintiffs claim that Defendant is liable for their injuries, including their severe emotional distress, because it did not take the measures necessary f...

Excerpt: ...ntify Plaintiff and Plaintiff does not allege facts showing that members of Ace who did not already know about the incident would have been able to identify her as the member "yellow carded" based on a complaint for battery. In addition, Plaintiff alleges that she made contact with "Individual 1" during the incident, and she acknowledges that she was angry when she did so. Plaintiff alleges that she was defending herself, but the facts alleged st...

Excerpt: ...mercial Code § 2725(2) is without basis. Judgment Debtor's argument is based on the answer given by the jury in response to question 6.g. of the Special Verdict. Judgment Debtor would have the Court draw an inference that the jury made a finding about when the claim for breach of express warranty arose based on its answer to question 6.g. There is no factual basis to draw this conclusion. The law states that the warranty claim accrued when it be...

Excerpt: ...sufficient to constitute a defense to the complaint." (CCP § 438(c)(1)(A).) "A motion by a plaintiff for judgment on the pleadings is in the nature of a general demurrer to the answer, and the motion must be denied if the answer raises a material issue or sets up affirmative matter constituting a defense." (Barasch v. Epstein (1957) 147 Cal. App. 2d 439, 442.) "Where the answer, fairly construed, suggests that the defendant may have a good defen...

Excerpt: ...ina Pet Salon, LLC's ("KPS, LLC") customers, (2) using KPS, LLC's confidential and proprietary information; and the Court also orders Defendant to (3) surrender and provide to Plaintiffs KPS, LLC and Francisco Reynoso the administrative passwords and any additional information that will enable them to gain control over KPS, LLC's social media, domain name and other online accounts, including but not limited to the domain name "https://katrinaspet...

Excerpt: ... merits of Moorpark's contentions. Also, the Court overrules Moorpark's procedural objections to Judgment Debtor Chunlei Leila Guo's opposition that he concedes he received eleven (11) court days before the hearing. See CCP § 1005(b) (opposition must be filed and served at least nine (9) court days before hearing). The Court has the discretion to consider late papers if the opposing party has not sustained undue prejudice. See Rule of Court 3.13...

Excerpt: ...tion of Defendant's retained expert, Marco Schmidt, was scheduled to take place in Frankfurt, Germany, on November 22, 2019. Plaintiff's objection to the depositions of Kuhn and Eichhammer in Germany is sustained. Plaintiff argues that the notices are legally deficient because counsel for Defendant did not comply with the requirements for international discovery set forth in the Hague Convention or with German law. See CCP § 2027.010(c). The req...

Excerpt: ...ther the amount sought is reasonable. See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1133 (manner of calculating fees); and Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-818 (same). When the billing records were received in advance of the July 2019 hearing, the Court noted that Plaintiff made extensive redactions without seeking court approval under Rules of Court 2.550 and 2.551. Plaintiff now asks...

Excerpt: ...ter; (B) The award of attorney's fees is reasonable under California law; and (C) The penalty amount is reasonable under in light of the section 25249.7(b)(2) factors. More generally, the Court must ensure the parties' settlement "serves the public interest." (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 62.) CEH set several motions for 12/3/19 regarding Proposition 65 claims involving acrylamide. CE...

Excerpt: ...t made the required affirmative showing of good cause necessary to continue the trial date. (See Cal. R. Ct., Rule 3.1322(a) ["[T]he dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain."]; Cal. R. Ct., Rule 3.1322(c) ["[C]ontinuances of trials are disfavored[.]"].) Among other things, the present trial date in this action was set on April 17, 2019, and Defendants have not demonstrated to ...

Excerpt: ...his disability. Plaintiff apparently has suffered from epilepsy for many years. Defendant discovered Plaintiff's condition when he asked for time off from work to deal with his symptoms. Plaintiff alleges that Defendant initially reduced his weekly hours from 40 to 24, and then later terminated his employment. The Court continued the hearing on Defendant's motion from October 1, 2019 to December 3, 2019 because the parties presented directly conf...

Excerpt: ...ith post concussive syndrome, depression, memory loss, problems with irritability and concentration sleep problems and tinnitus. Plaintiff further stated that he has post-concussive symptoms which ranged from ear noise, anxiety, depression, memory loss, irritability, concentration problems, anger, mood swings, sleep disturbance, flashbacks and vision problems. On March 6, 2017, plaintiff appeared for deposition and testified that he continues to ...

Excerpt: ...LAINT Plaintiff Kathleen Reeves ("Plaintiff") brought this action based on allegations that Defendant Monica Leasure ("Leasure"), a receptionist at Plaintiff's law office, diverted Plaintiff's accounts receivable to herself using credit card and bank accounts in Plaintiff's name. Plaintiff contends that Defendant Carl Upthegrove ("Upthegrove"), whom Plaintiff contracted to check in on her office while she was being treated for medical issues, hel...

Excerpt: ...ding actively discouraging meal breaks, and requiring off-the-clock work. (See, e.g., Complaint, paras. 60, 61.) Plaintiff's Complaint alleges a single cause of action under the Private Attorneys General Act ("PAGA"). Plaintiff's Complaint is brought on behalf of herself, other aggrieved employees, and the State of California. Plaintiff's Complaint seeks civil penalties, attorney fees, and interest from Defendants. (See Complaint, para. 33.) Plai...

Excerpt: ...kland. Specifically, Plaintiff alleges that an air vent cover attached to the wall suddenly off the wall and hit her in the head, causing injury. Plaintiff alleges that Defendants RCB, Teresa Ceja, Kimberly Ceja, Fryda's Design, and Saint Jarlath Catholic Church ("St. Jarlath") negligently owned, controlled, supervised, managed, designed, constructed, maintained and operated the premises so as to allow a dangerous condition to exist on the proper...

Excerpt: ...efendant 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).) Here, Defendant has presented admissible evidence that Plaintiffs' cause of action for negligence is preempted by Federal Railroad Safety Act regarding the engagement of the emergency braking system and the horn war...

Excerpt: ...rmed of the risks he would have consented even if a reasonably person in plaintiff's position might not have consented." Plaintiff does not oppose the addition of the 11th Affirmative Defense. Defendants also seek to add a 12th Affirmative Defense that "The defendants expressed opinions regarding the treatment and procedures relying on their judgment and disclosed the important potential results and the risks of the procedures." Defendants conten...

Excerpt: ...5, 2019, when it should have been served by October 25, 2019), and filed an untimely reply brief on October 19, 2019. (People v. $17,522.08 United States Currency (2006) 142 Cal. App. 4th 1076, 1084 ["Both civil litigants and criminal defendants who represent themselves in the trial court are held to the same standards as are parties who are represented by counsel."]; Gamet v. Blanchard (2001) 91 Cal. App. 4th 1276, 1284 ["[P]ro per litigants are...

Excerpt: ...n 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 liability not on that...

Excerpt: ...aint on November 5, 2018, along with an Amendment to Complaint on November 21, 2018, and a Miscellaneous Addendum to First Amended Complaint on November 27, 2018. A Miscellaneous Second Addendum to First Amended Complaint was filed on December 31, 2018, in which Plaintiff attempted to add sixteen additional causes of action. As part of its ruling on Defendants' demurrer to the First Amended Complaint, the Court ordered the Miscellaneous Second Ad...

Excerpt: ...See Code of Civil Procedure section 439(a)(4).) However, the Motion is DENIED because Plaintiff has adequately alleged facts that may give rise to the imposition of a constructive trust and an accounting. Regardless of whether a constructive trust is a remedy or a cause of action, Plaintiff has adequately alleged facts that may entitle Plaintiff to a constructive trust over the real property that is the subject of this action. Specifically, Plain...

Excerpt: ...nt Merrill were guests at The Claremont at the time. Plaintiff's husband was allegedly in the couple's hotel room when the incident occurred. Plaintiff's Catalan Sheepdog suffered serious injuries. Plaintiff's own injuries were relatively minor. Plaintiff has estimated that she has incurred special damages in the sum of $7,462.65. On August 9, 2018, the Court denied Defendant's Motion for Good Faith Settlement without prejudice due to the lack of...

Excerpt: ...Quiet Title is OVERRULED as to Israel Alvarado and SUSTAINED WITH LEAVE TO AMEND against all other cross-defendants. As to cross-defendant Israel Alvarado, defendant Beatrix Alvarado's ("Defendant") cross-claim for quiet title is simply a mirror image of Israel's quiet title claim in his Complaint (although she appears to concede and not question his 5% interest in the subject property). The Court therefore OVERRULES the Demurrer as to the quiet ...

Excerpt: ...on (violation of Penal Code § 496) the demurrer is SUSTAINED, pursuant to C.C.P. § 430.10(e), WITH LEAVE TO AMEND to allege facts sufficient to constitute a cause of action for damages under Penal Code § 496, including facts to the effect that Cross-Defendants received property "that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained," or concealed, sold or ...

Excerpt: ...urrer sufficiently demonstrates that Plaintiff's complaint, filed on January 29, 2019, does not state facts sufficient to constitute a cause of action and is uncertain for all the grounds addressed in the demurrer and accompanying memorandum, which grounds are amply supported by the cited authority. (See Memo., pp. 1-15, and authority cited therein.) The court incorporates such arguments by reference herein instead of repeating them in their enti...

Excerpt: .... 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 notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pl...

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

Excerpt: ...failure to comply with § 1793.2(a)(3). (See First Amended Complaint, paragraphs 61-62.) Whether those allegations are true or not cannot be determined in ruling on this demurrer, but instead must be determined at a later stage of this case. The Demurer to the Fourth Cause of Action for Violation of Civil Code § 1791.2 and § 1794 is OVERRULED, for the same reason KMA's demurrer to this cause of action was previously overruled on March 8, 2019. ...

Excerpt: ...failing to comply with the agreement. Plaintiffs are entitled to the reimbursement of their reasonable attorney's fees and costs pursuant to the terms of the Settlement Agreement. Counsel for Plaintiffs shall prepare and submit a Proposed Order and Proposed Judgment no later than June 12, 2019. NOTICE: Effective June 4, 2012, the Court will not provide a court reporter for civil law and motion hearings, any other hearing or trial in civil departm...

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

Excerpt: ...ve all of the disputed issues informally prior to filing the motion on February 8, 2019. 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). Counsel are advised that their meet-and-confer efforts should go beyond merely sending letters stating their respective positions. See Townsend v. Superior Court (1998) 61 Cal.A...

Excerpt: ...as purportedly attached as Exhibit A. Exhibit A, however, did not contain responses to WFB's Requests for Admissions, Set One, which are the subject of the instant motion. (See Decl. of Shiv Samtani, Exh. A.) Defendant also filed a separate document on April 3, 2019, captioned as "Defendant's Responses to Plaintiff's Special Interrogatories, Set One." As stated in the court's order of May 15, 2019, those responses were to WFB's interrogatories ra...

Excerpt: ...court construes it as a motion to set aside entry of default rather than default judgment. The motion seeks to set aside the entry of default on three grounds: (1) it was entered through "extrinsic mistake as is set forth in the attached declaration of Cathy Perez, claims adjuster of Mercury Insurance"; (2) it is void based on a "questionable proof of service"; and (3) it is void based on the failure by Plaintiff Otis Duckett ("Plaintiff") to "fi...

Excerpt: ...ilure to comply with its obligations under § 1793.2(a)(3) was willful. KMA's motion to strike Plaintiffs' prayer for punitive damages is DENIED. KMA argues that Plaintiffs cannot recover punitive damages on their claims for violation of the Song-Beverly Consumer Warranty Act because Civil Code § 1794 does not expressly state that punitive damages are available for those claims. However, KMA fails to cite any case law holding that punitive damag...

Excerpt: ...pliance with Health & Safety Code section 25249.6; (C) the reimbursement of $16,000 for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; and (D) the civil penalty of $1,500 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). The CJ requires that beginning on the date the Consent Judgment was signed by both parties, any Cov...

Excerpt: ...proper on their face. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Plaintiffs' Motion is GRANTED as to the specific costs challenged. Defendant cannot recover $3,788.61 in costs for depositions not used at trial and not necessary for protection of its rights -- namely, the depositions of Jody Pollak, Ava Lavender, Tanya Cagnolatti, and Julie Lanoff. (Code Civ. Proc. § 1033.5(a)(3)(A).) The "COR" bills from Compex are c...

Excerpt: ...r the permitted time expired, and failed to provide the Court with a valid reason for the delay. Defendant has submitted evidence that Plaintiffs failed to timely file their FAC after Defendant's demurrer to the SAC was sustained, filing the FAC at least one week too late. (See Barlev Dec., para. 9; Def.'s Memo., p. 2:13- 20.) In response, Plaintiffs do not argue the FAC was timely filed, but instead attempt to persuade the Court to use its discr...

Excerpt: ...Defendants"). Defendants did not establish that it would be appropriate to stay this later-filed action pending the outcome of plaintiffs George C. McLauchlan and Karen L. McLauchlan's earlier-filed Illinois action. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574-575 [decision to stay is discretionary when actions are pending in courts of different states].) "A discretionary ruling on whether to stay must take into consideration matters outsi...

Excerpt: ...on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) "Ultimately, disqualification m...

Excerpt: ...terials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged." (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817 (citing State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th at 656-657).) In the case of a motion to disqualify opposing counsel based upon the receipt of privileged material, disqualification is only ordered for prophylactic, not punitive, purpose...

Excerpt: ...ndant County's demurrer to Plaintiff's First Amended Complaint ("FAC") on January 24, 2019 and granted leave to amend within 10 court days "following service of th[e] order as modified for method of service by CCP section 1013." (Order Sustaining Demurrer of 1/24/2019, p. 4.) The Order was then served by mail on February 7, 2019. (See Dec. Serv. By Mail re: Order After Hearing Re: of 1/24/2019, dated 2/7/2019.) In addition, Defendant County serve...

Excerpt: ...ight have been inclined to award monetary sanctions. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-411 [belated response in face of imminent motion to compel does not deprive trial court of authority to rule on motion].) However, the various versions of Plaintiff's Complaint reveal that Defendant took out the loan at issue to attend law school. On its own motion, the Court takes judicia...

Excerpt: ...xt on the first page of the declaration containing the first 2 paragraphs of the declaration appears to be missing from the declaration. Second, Defendant has failed to protect the Plaintiff's personal identification information under California Rule of Court, Rule 1.201(a)(1). The Plaintiffs' social security numbers appear in multiple locations in the exhibits to the declaration. Defendant is to redact all references to Plaintiffs' social securi...

Excerpt: ...y law. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) Defendant Sanjot Singh Kang did not file an opposition and has not waived the error. (Cf. In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829.) The Court urges counsel for Plaintiff to confer with Defendant concerning a stipulation to transfer venue to Contra Costa County, since this case clearly does not belong in Alameda County unless Defendant wishes the case to remain here....

Excerpt: ...r or Seller shall be entitled to reasonable attorney fees and costs from the non- prevailing Buyer or Seller, except as provided in paragraph 22A." Paragraph 22A of the Agreement, in turn, states, in relevant part: "MEDIATION. The Parties agree to mediate any dispute or claim arising between them out of this Agreement...before resorting to arbitration or court action . . . . If, for any dispute or claim to which this paragraph applies, any Party ...

Excerpt: ...fendant did not bear its burden of proving that Congress intended to preempt state law in this instance. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) California recognizes "four species of federal preemption: express, conflict, obstacle, and field." (Id. at 936.) Each has its own distinct test. (Id.) Defendant incorrectly tried to conflate the latter three types of preemption into a...

Excerpt: ...fendant did not bear its burden of proving that Congress intended to preempt state law in this instance. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) California recognizes "four species of federal preemption: express, conflict, obstacle, and field." (Id. at 936.) Each has its own distinct test. (Id.) Defendant incorrectly tried to conflate the latter three types of preemption into a...

Excerpt: ...h in the text of Section 430.41(a)(1). Counsel does not comply simply by calling Plaintiffs and telling them that their First Amended Complaint fails to state any cause of action. The Court expects parties to comply strictly with the meet-and-confer obligation enacted by the Legislature. The Court is not surprised that Plaintiffs reflexively disagreed with counsel's evaluation of the First Amended Complaint. Defendants may file a second Demurrer ...

Excerpt: ...SC that required a contractor's license and that MPI did not have such a license. (Cross-Complaint, ¶¶ 16-18.) WSC alleges that, pursuant to Business and Professions Code section 7031(b), WSC is thus entitled to recover all compensation paid to MPI as an unlicensed contractor. (Id., ¶ 19.) MPI's demurrer is based on the ground that this was a claim that was required to be brought as a compulsory cross-complaint in the prior action entitled Mas...

Excerpt: ...s directed to serve its verified supplemental responses no later than May 28, 2019. If, after reviewing those verified supplemental responses, Plaintiffs believe they are inadequate, counsel for Plaintiffs and Defendant are ordered to meet and confer, in person, to attempt to resolve any disputes about those responses. If counsel are unable to informally resolve any disputes about the supplemental responses, they are directed to file a Joint Stat...

Excerpt: ...d to a prevailing party must be incurred by that party, must be "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation," and must be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3); Charton v. Harkey (2016) 247 Cal.App.4th 730, 743.) Further, the language of the Civil Code section 1794 provides for recovery of both "costs" and "expenses" for claims under the Song-B...

Excerpt: ...vil Procedure section 2020.420.) In addition, to the extent that Mr. Richards is willing to assume responsibility for copying the responsive documents, any copying would have to take place at Mulch Master's business address, not at the office of Plaintiff's counsel. (See The Rutter Group's Civil Procedure Before Trial section 8:547.2.) Plaintiff has also failed to demonstrate good cause for production of the documents requested in the subpoena (w...

Excerpt: ...ints in (2) Alfaro v. Bay Area Diner, Inc., RG15797839, and (3) Benlamlih v. Bay Area Diner, Inc., RG15797841, assert at paragraph 25 that the plaintiffs were misclassified as an exempt employees. The answers filed in Alfaro and Benmilah do not assert the affirmative defense that plaintiffs are properly classified as exempt managers under Labor Code 515 and Wage Order 5 (8 CCR 11050). "Ordinarily, courts should 'exercise liberality' in permitting...

Excerpt: ... "for the purpose of determining the extent to which leave to amend should be granted as to the Sixth Cause of Action, as requested by Plaintiff Ashley Stewart ('Plaintiff')"; and (3) an order on May 10, 2019, continuing the hearing to May 24, 2019, "based on the emailed request from counsel for Plaintiff Ashley Stewart stating her inability to attend a hearing on May 10, 2019." The order of April 11, 2019, stated in part: "Prior to the hearing o...

Excerpt: ... Plaintiff alleges that its landlord "was threatening to charge Plaintiff $400,000.00 to clean up the Property." (See Complaint, paragraph 12.) But Plaintiff does not allege that its landlord in fact charged Plaintiff $400,000, or any other amount, as a result of Defendant's alleged failure to fulfill its obligations under the parties' contract, or any other facts demonstrating how Plaintiff has been damaged by that breach. The Demurrer to the Se...

Excerpt: ...e action." (CCP sec. 428.50(c); see also CCP sec. 428.10 [setting forth the types of causes of action that can be asserted in a cross-complain].) Here, the interests of justice do not support allowing Defendant to file a cross- complaint at this time. Defendant seeks to add third parties to the action as cross- defendants. (See Exh. A to Tong Dec.) "A greater showing of 'interest of justice' is required to obtain leave to file a cross-complaint a...

Excerpt: ...r the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code sec. 1794(a).) "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover...

Excerpt: ...r the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code sec. 1794(a).) "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover...

Excerpt: ...e action." (CCP sec. 428.50(c); see also CCP sec. 428.10 [setting forth the types of causes of action that can be asserted in a cross-complain].) Here, the interests of justice do not support allowing Defendant to file a cross- complaint at this time. Defendant seeks to add third parties to the action as cross- defendants. (See Exh. A to Tong Dec.) "A greater showing of 'interest of justice' is required to obtain leave to file a cross-complaint a...

Excerpt: ...g is pending, shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]") STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitra...

Excerpt: ...ber 19, 2016. Plaintiff Lai dismissed his claims without prejudice on August 11, 2017. In April 2017, Plaintiffs substituted Defendant Kam Hung Fong, Lisa Fong's former spouse, in the place of DOE 1. Plaintiffs then added Defendants Angela Fong and Bobby Fong in the place of DOE 2 and DOE 3, respectively, on December 26, 2017. Defendants have met their initial burden of making a prima facie showing that no triable issues of material fact exist an...

Excerpt: ... assert (1) that the disciplinary proceedings subsequent to the Court's writ lacked evidentiary support and (2) that the resulting sanction of dismissal was an abuse of discretion. These objections are OVERRULED WITHOUT PREJUDICE. When the respondent holds further proceedings in response to a writ and the Court must review the record of those proceedings to determine compliance, the appropriate procedure to challenge those proceedings is to comme...

Excerpt: ... arises from a dispute between Plaintiff against his landlords, Defendants Khaled Saeed and Leitaled Saeed (collectively, "Defendants"), concerning a fire that occurred on the property where he resides, located in Oakland, California (the "Property") on January 26, 2017. (Compl. ¶¶ 1-2, 13.) Plaintiff seeks an order compelling Defendant Khaled Saeed and his insurance carrier, State Farm, to produce certain unredacted documents identified on the...

Excerpt: ...rt, Case No. RG18933394, be consolidated with Golden State Lumber, Inc. v. Burns, et al., Alameda County Superior Court, Case No. RG18921206 for all purposes. IT IS FURTHER ORDERED THAT all future filings shall be in this action, Golden State Lumber, Inc. v. Burns, et al., Alameda County Superior Court, Case No. RG18921206. "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial...

Excerpt: ... party in time to defend an action. (CCP §473.5.) Relief under §473.5 must be sought within a "reasonable time," not to exceed two years after entry of default judgment. A motion for relief under CCP §473.5 must show the lack of actual notice was not due to the party's avoidance of service or inexcusable neglect. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) The court finds that the declaration submitted by Sparx 7, LLC managing member...

Excerpt: ...re had until August 30, 2018 to file and serve the First Amended Complaint. On November 13, 2018, Plaintiff filed an Application for an Extension of Time to File the First Amended Complaint. Plaintiff mentioned in the application that Defendant had previously granted him extensions on an informal basis. The Court denied the application on November 16, 2018. Plaintiff's late First Amended Complaint filed more than six months after the Court grante...

Excerpt: ...ear to have complied with this Court's Case Management Order of April 27, 2018 to utilize best efforts to obtain new counsel. Defendant failed to appear with counsel at the Case Management Conference of June 14, 2018. Defendant failed to appear at all at the Case Management Conference of October 3, 2018. According to Plaintiff's evidence, Defendant has failed and refused to provide available deposition dates for Defendant's chief executive. Defen...

Excerpt: ...See CCP § 395(a). However, if there is more than one correct venue, Plaintiffs are entitled to select the one they prefer. Defendant's motion is denied because it did not rebut Plaintiffs' claim that it is a foreign corporation and that it has not designated a principal office in California in documents filed with the California Secretary of State. According to Easton v. Superior Court (1970) 12 Cal.App.3d 243, 246-247, cited by Plaintiffs, the ...

Excerpt: ...r the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code sec. 1794(a).) "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover...