Excerpt: ...n to Strike as to Plaintiff's third cause of action for abuse of process, but overruled Defendants' demurrer to the FAC's first, second and fifth causes of action (the "defamation related claims"), as well as the fourth cause of action for IIED. Defendants appealed. The court of appeal found that Plaintiff's claim for abuse of process was properly stricken, but his defamation related claims and IIED claim had at least minimal merit, and should no...

Excerpt: ...dds allegations regarding all of the Defendants save Kaiser Foundation Hospitals, Defendants are required to file amended answers. Defendants shall respond to the TAC, after it has been served, as provided by the Code of Civil Procedure. IT IS FURTHER ORDERED that Defendant Permobil, Inc.'s ("Permobil") motion for summary judgment or summary adjudication, which is based on Plaintiff's Second Amended Complaint ("SAC") and is currently scheduled to...

Excerpt: ...430.30(a); and Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152 (facts subject to judicial notice may disclose existence of defense). The Court hereby takes judicial notice of Plaintiff's initial Complaint and its order sustaining Defendant's Demurrer to the Second, Third and Fourth Causes of Action in the initial Complaint with leave to amend. See Evidence Code §§ 452 and 453. Plaintiff Monterrosa alleges that he is a Hispani...

Excerpt: ...lso been assigned by its insured claims against Defendants for reimbursement for damages caused by Defendants to a motor home rented by the insured to Defendants. LEGAL STANDARDS "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 assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those...

Excerpt: ...el Newman (collectively, "Plaintiffs") brought this action against Defendant concerning its obligations under the written warranty it issued for a vehicle purchased by Plaintiffs in November 2012. Plaintiff alleges that Defendant breached the express warranty and implied warranty of merchantability by knowingly delivering a vehicle with serious defects and nonconformities, which later developed other serious defects and nonconformities, including...

Excerpt: ... CCP sec. 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...

Excerpt: ...EAVE TO AMEND. Plaintiff alleges that while she was at a Kaiser facility for a medical appointment, she was sexually assaulted by Defendant Efrain Castanon, a medical assistant. Based on the allegations in the First Amended Complaint, TPMG is not vicariously liable for its employee Castanon's sexual battery as a matter of law because his actions were beyond the scope of his employment. (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital (...

Excerpt: ...ity to reform a written contract "[w]hen, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties." (Civ. Code § 3399.) UC's first cause of action alleges that "the Covenants contain or seek to impose restrictions and criteria that do not truly express the intention of the parties given the passage of time si...

Excerpt: ...ould be published in the City's voter information pamphlet, which the City distributes to eligible voters in connection with the Election. Plaintiff alleges that on October 27, 2018, he discovered that the qualifications statement that he submitted had not been printed verbatim in the City's voter information pamphlet. Plaintiff's SAC alleges three causes of action for (1) damages and injunctive relief for Defendants' alleged failure to discharge...

Excerpt: ...CNCG has not established that it has the capacity to sue and be sued in its own name. Second, OCNCG has not shown that it has a direct and immediate interest in this litigation such that its members stand to gain or lose by direct legal operation and effect of a judgment in this action. Living near a proposed construction project is not a direct and immediate interest in a lawsuit, without some connection to the project or the land on which it si...

Excerpt: ... "SB 35"). The Court entered judgment on November 19, 2019. Respondent the City of Berkeley and intervenors the Confederated Villages of Lisjan oppose Petitioners' motion. For the reasons stated below, the motion is denied. 1. The Court Lacks Jurisdiction to Reconsider its Order but May Consider this Motion as a Motion for New Trial The Court entered Judgment in this case on November 19, 2019, while this motion was pending. Entry of judgment dive...

Excerpt: ...d 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.) Plaintiff's Complaint does not seek any indivi...

Excerpt: ...ard alleges that she was seriously injured in an accident caused by Austin Harris. Plaintiff alleges that Kimberly Harris is liable to her under a negligent entrustment theory. Although not explicitly stated, the parties have clearly conveyed to the Court the view of Defendants that Plaintiff is exaggerating the extent of her injuries and the limitations on her ability to work and engage in other life activities. In response to Plaintiff's form i...

Excerpt: ... Son Lee, et al. (RG19-036589) for all purposes. These four cases clearly involve common questions of law and fact. Indeed, the central issue in the third case mentioned above (Choe v. Lee), like the other three cases, is who (if anyone) is to blame for damages caused by the fire at the church. Choe's contention that he did not work on the church roof at the time of the fire is directly related to the claims that will be tried in the other three ...

Excerpt: ...s on August 13, 2019. Plaintiff timely filed his Motion to Strike and/or Tax Costs on August 28, 2019. Plaintiff's first contention is that the Court should not require him to reimburse Defendant's costs incurred in serving Subpoenas Duces Tecum for Plaintiff's records. Plaintiff claims that Defendants violated his right to privacy when they served their subpoenas. Plaintiff also claims that Defendants failed to comply with the statutory requirem...

Excerpt: ...1285.2(a)(4), in two ways. First, BAD argues that the arbitrators exceeded their power by awarding RGW for costs to complete "balance of 24 inch CIDH Piles", because (1) RGW had been the subcontractor listed to perform that work on Bid Item 111 and (2) Caltrans had determined on August 25, 2017 that RGW violated Public Contracts Code sections 4100 et seq. by substituting another contractor to do that work without Caltrans approval. Although Caltr...

Excerpt: ...ndependent contractors in violation of Labor Code section 226.8, failing to compensate its workers appropriately, and failing to permit appropriate meal breaks. (See, e.g., Complaint, ¶¶ 3, 47.) Plaintiff's Complaint alleges causes of action under the Private Attorneys General Act ("PAGA"). Plaintiff's Complaint is brought on behalf of himself, other aggrieved employees, and the State of California. (See Complaint, p. 1.) Plaintiff's Complaint ...

Excerpt: ...n served, as provided by the Code of Civil Procedure; however, Defendant is not required to file an amended answer. Defendant's motion to compel arbitration is DENIED AS MOOT. MOTION FOR LEAVE TO FILE SAC "Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading. . . ." (CCP § 576.) Great liberality is afforded a plaintiff to file an...

Excerpt: ...ia Bar. (C.R.C. 9.40(a).) Hubbard is not a resident of the State of California. (C.R.C. 9.40(a)(1).) "'[R]esidence' connotes any factual place of abode of some permanency, more than a mere temporary sojourn. ... a person may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time." Smith v. Smith (1955) 45 Cal. 2d 235, 239. Hubbard met her prima facie burden by stat...

Excerpt: ...RULED. The Court agrees with the VC Stockholders that Plaintiffs have not alleged facts demonstrating that the VC Stockholders owed any fiduciary duty to the shareholders of Art.com, Inc. ("ART"). But Plaintiffs have alleged facts that, if true, may support a claim that the VC Stockholders aided and abetted in a breach of fiduciary duties by ART's board of directors. Under Delaware law, minority shareholders (as are each of the VC Stockholders) g...

Excerpt: ...s burden to show, for each cause of action, that "one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action." (CCP § 437c(p)(2); see Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220-221.) If the defendant has made this showing, the burden then shifts to the Plaintiff to show one or more triable issues of material fact. (CCP § 437c(p)(2).) "In order to...

Excerpt: ...endants based upon Defendants' representation of Plaintiffs for applications for patents with the United States Patent and Trademark Office ("USPTO"), which resulted in the issuance of U.S. Patent No. 7,516,227 (the "'227 Patent") on April 7, 2009. Plaintiffs allege that Defendants also represented Plaintiffs in the subsequent amendments, corrections, and administrative challenges regarding the '227 Patent as late as February 18, 2016. Plaintiffs...

Excerpt: ...rogatories, Set No. 1, which were originally served on Defendant on May 29, 2019. The date for Plaintiff's compliance with this Order is 10 days from the date of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. In regards to Special Interrogatory No. 2, Defendant's present response is inadequate, as Defendant has made an insufficient attempt to discern the information requeste...

Excerpt: ...them to incur damages. Defendants failed to appear in the case. On 2/23/11, after a default prove-up, the court entered judgment for plaintiffs in the amount of $66,023.30. On 10/25/17, an abstract of judgment was issued. In 2017 and 2019, writs of execution were requested, and issued. Defendants seek to set aside the abstract of judgment and subsequent writs under CCP §473(d), on the ground that the 2011 judgment was void. CCP §473(d) provides...

Excerpt: ...ne, the decision of the arbitrator is final and "shall" be confirmed by the court upon the petition or motion of a party to the arbitration, subject to the narrow exceptions set forth in Code of Civil Procedure sections 1286 et. seq. (See Moncharsch v. Heily & Blase (1992) 3 Cal. 4th 1, 11-12.) Here, although they have opposed the petition, Defendants/Cross-Complainants Mark Gimle and Tina Gimle ("Defendants") have not identified an exception und...

Excerpt: ... which would purportedly preclude Drivers from recovering anything and would cost Drivers their jobs. Plaintiffs contend that Defendants offered these Drivers less than what is being sought in this action and less than what certain drivers are seeking through arbitration. When Plaintiffs had discovered these communications in September 2019, they expressed to Defendants' counsel that such communications were inappropriate, but Defendants' counsel...

Excerpt: ... to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to 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 ...

Excerpt: ...d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (e) Notwithstanding any other provision of law, the cour...

Excerpt: ...rceived disability, failure to accommodate, failure to engage in the interactive process, and failure to prevent discrimination. Cal. Govt. Code §12940. The claims went to a bench trial, which concluded on 8/21/2013. The DFEH prevailed on all causes of action except its claim for failure to engage in the interactive process and the court entered judgment in favor of the DFEH for $112,400. In its judgment, the court ruled the DFEH could seek its ...

Excerpt: ...ut in the parties' agreement." (Oct. 21, 2019 Statement of Decision at p. 1.) A court may only award attorneys fees where authorized by contract, statute or law. (CCP § 1033.5(10).) Plaintiff seeks attorney's fees based on her successful claim that Defendant John Searle breached the settlement agreement between the parties, which has a fee-shifting provision that states that: "In any dispute arising from this Agreement, the prevailing party shal...

Excerpt: ...ural history and facts of this case. The Complaint was filed on April 17, 2017. This case was assigned to Department 517 for all purposes on April 18, 2017. The Court presided over the 23-day jury trial that began in late August 2018 and concluded with a verdict in favor of the People on November 5, 2018. As counsel for the prevailing party, the Attorney General's Office is statutorily entitled to recover its reasonably incurred attorney's fees a...

Excerpt: ...ke is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendmen...

Excerpt: ...mplainants to perform improvements at the property located at 3525 Joaquin Miller Road, in Oakland. Cross-Defendant allegedly performed all or nearly all of the work before Cross-Complainants terminated him in December 2017 for failure to comply with the terms of the contract. Cross-Defendant submitted invoices to Cross-Complainants that total $276,808.87. Cross-Complainants paid Plaintiff $173,355.75. In their Fourth Cause of Action, Cross-Compl...

Excerpt: ...ange Development Plan ("2020 LRDP"). The City opposes the motion to disqualify. For the reasons discussed below, the motion is DENIED. LEGAL STANDARDS The Court has the inherent authority to disqualify counsel in appropriate cases as part of its inherent power to control, "in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it . . . ." (Code of Civ....

Excerpt: ...on raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) In addition, "[n]otwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preferenc...

Excerpt: ...ded 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 pleading are deemed to be true, however improbable they may be," unless the "complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) "...

Excerpt: ...them to incur damages. Defendants failed to appear in the case. On 2/23/11, after a default prove-up, the court entered judgment for plaintiffs in the amount of $66,023.30. On 10/25/17, an abstract of judgment was issued. In 2017 and 2019, writs of execution were requested, and issued. Defendants seek to set aside the abstract of judgment and subsequent writs under CCP §473(d), on the ground that the 2011 judgment was void. CCP §473(d) provides...

Excerpt: ...them to incur damages. Defendants failed to appear in the case. On 2/23/11, after a default prove-up, the court entered judgment for plaintiffs in the amount of $66,023.30. On 10/25/17, an abstract of judgment was issued. In 2017 and 2019, writs of execution were requested, and issued. Defendants seek to set aside the abstract of judgment and subsequent writs under CCP §473(d), on the ground that the 2011 judgment was void. CCP §473(d) provides...

Excerpt: ...ulings in the bankruptcy proceeding to defend against his claims in this action, but the judicially noticeable documents provided by Plaintiff do not support that conclusion. The bankruptcy estate waived the right to bring affirmative claims against HLF based on claims of malpractice, but the settlement is not reasonably construed as a waiver of AGLLC's rights to defend against claims by HLF to enforce its liens, which were excluded from the bank...

Excerpt: ...se." (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.) DEMURRER Defendants demur to each of the FAC's two causes of action brought against the demurring Defendants. The court notes that although the caption on Plaintiff's SAC enumerates three causes of action, the body of the SAC contains onl...

Excerpt: ...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 pleading are deemed to be true, however improbable they may be," unless the "complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Stru...

Excerpt: ...otion on Ruiz and Lagorreta in the manner of a summons and complaint sufficiently in advance of the continued hearing date to comply with CCP section 1005(b). State Farm shall file a proof of service at least 5 court days before the continued hearing date. BACKGROUND/RECOMMENDATION 9/27/19 Petition of State Farm for Superior Court case # for the purpose of issuing subpoenas for the production of documents. Petitioner is investigating a claim of i...

Excerpt: ...sser performed his work on the project from an elevated platform 10 feet above the floor, which could only be accessed by a scissor lift or a ladder that was tied with a strap to a metal column adjacent to the platform. On the day of his injury, Paul Esser was attempting to descend from the platform on the ladder when the strap broke and the ladder slid, causing him to fall and break his ankle. (See, generally, Flying Moose, LLC's Separate Statem...

Excerpt: ...dget representative that Plaintiff owed money to The Hertz Corporation, and that she had bad credit. Plaintiff alleges that several Budget employees discussed her bad credit and debt owed to Hertz Corporation in front of four other customers. Plaintiff alleges that Budget and Avis falsely represent themselves as two different companies. Plaintiff alleges that ABG committed slander, but she did not file suit until August 20, 2018. The statute of l...

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

Excerpt: ... ("Leonard"). (See Second Amended Complaint, paragraph 12.) However, Plaintiff alleges that he did not intend to transfer title to the subject property to Larry, Mark, and Leonard at the time he executed the grant deed. (Id.) Instead, Plaintiff believed that in order to validly transfer title, the grant deed would first have to be recorded, and Plaintiff instructed Larry not to record the grant deed. (Id. at paragraphs 12-14.) Plaintiff later exe...

Excerpt: ...itled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of produ...

Excerpt: ...nt Anne J. Levesque's mesothelioma. Plaintiff's Complaint, filed on December 1, 2017, pleaded seven causes of action for negligence, strict liability, negligent misrepresentation, fraud by nondisclosure, vicarious liability based on respondeat superior, premise owner/contractor liability, and loss of consortium. The Complaint also demands punitive damages. Defendant now seeks summarily judgment, or, in the alternative, summary adjudication of the...

Excerpt: ...f is claiming that he was injured during the accident in question. (Complaint ¶10.) Defendant is entitled to an examination under 2032.220(b). Therefore, the court GRANTS the motion to compel Plaintiff's attendance at the Independent Medical Examination with Dr. Oshtory on December 19, 2019. Dr. Oshtory is to produce his report on an expedited basis, specifically within two weeks of the examination in light of the upcoming trial date. VEHICLE IN...

Excerpt: ...aking in the amount of $60,000 to Catalina's counsel, to compensate Catalina for loss of use of the property from the date of the hearing until January 2021. The amount of the undertaking is based on the court's best estimate, given the information provided by Catalina, of the loss Catalina will incur from loss of use, less expenses of ownership, until January 2021, which is the estimated date the court of appeal will rule on Plaintiff's appeal. ...

Excerpt: ...uld find in its favor as to each element of its claims. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Defendant does not have an obligation to present any contrary evidence until the initial burden is met. Id. at 850-851. Plaintiff's motion is based entirely on Defendant's account records and his initial application for an account. The declaration of Donna Toomes, Team Leader of Discover Products, Inc., however, is not suffici...

Excerpt: ... persons similarly situated who have been employed by Defendant as non-exempt electricians in the State of California within the applicable class period [of July 16, 2015 through trial]." Plaintiff's claims of Defendant's policy and practice of failing to abide by applicable Labor laws during the class period are described generally in paragraph 3 of the First Amended Complaint. Defendant contends that this action should be abated because Plainti...

Excerpt: ...th Cause of Action for Negligent Misrepresentation, pursuant to CCP § 430.10(e), is SUSTAINED WITH LEAVE TO AMEND. Plaintiff did not comply with its obligation to plead specific facts supporting each element of its fraud claims against Defendants. See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (complaint must contain facts showing how, when, where, to whom, and by what means the representations were made); and Tarmann v. State Farm Mut. ...

Excerpt: ...f action) 'involves' an agreement, in the sense that the action (or cause of action) arises out of, is based upon, or relates to an agreement by seeking to define or interpret its terms or to determine or enforce a party's rights or duties under the agreement, and (2) the agreement contains an attorney fees clause." (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1170, quoting Douglas E. Barnhart, Inc. v. CMC Fabricators, ...

Excerpt: ...s") opposition is untimely because it was filed and served on November 21, 2019, instead of November 18, 2019. The Court notes that Plaintiff's Motion failed to provide adequate notice as it was served by mail on November 8, 2019 for a hearing set on December 3, 2019, when notice should have been served by mail no later than November 1, 2019. As both parties failed to comply with the Code of Civil Procedure but were able to substantively respond ...

Excerpt: ...mplaint alleging the same causes of action. A second Amended Complaint was filed on 6/14/2019. Plaintiffs allege that they were working at a construction site when the elevated platform on which they were working collapsed, causing them to fall and sustain serious injuries. It is unclear from the complaint precisely what role the defendants had in causing plaintiffs' injuries, as defendants are not plaintiffs' employer. It appears defendants prov...

Excerpt: ... any defendant, cross- complainant, intervenor, or cross-defendant has asserted any claims against the Owner Defendants, so that aspect of the motion is moot. In addition, the register of actions for this case does not reflect that Plaintiff filed any response whatsoever to the 42 facts in the Owner Defendants' Separate Statement. Instead, Plaintiff's opposition Separate Statement contains 25 completely new facts. Plaintiff's failure to respond t...

Excerpt: ... truck. The complaint was not served on Martinez until 5/10/2019. On 5/15/2019 Martinez filed an answer in pro per. Martinez retained counsel and a verified answer to the complaint for defendant TSTT was filed on 8/28/2019. Defendants TTST and Martinez filed this motion for leave to amend answer on 10/4/2019. The proposed amended answer simply consolidates the respective answers filed by Martinez and TTST. The proposed amended answer is in all ot...

Excerpt: ...App.4th 763, 772.) Plaintiff's arguments about whether the agreement complied with the requirements of the Rees-Levering Automobile Sales Finance Act (Civil Code § 2981 et seq.), and whether the arbitration provision is enforceable under the Federal Magnusson Moss Warranty Act (15 USC § 2301 et seq.) appear to be misplaced, because Plaintiff has not alleged any claims under either of those statutory schemes. Rather, the only claims Plaintiff ha...

Excerpt: ...ormation concerning facility name, department, section, or location within a facility is unknown. This renders his response to Nos. 6- 9 equally confusing. In addition, Plaintiff's identification of coworkers in Nos. 8 and 9 fails to provide the requested information about the location and period of employment applicable to those coworkers. No. 13-16, 18: GRANTED. Additional specificity is required. Plaintiff's responses are not organized in a wa...

Excerpt: ... IT IS FURTHER ORDERED THAT that Plaintiff/Defendant Singh shall deposit with the Court $3,000.00 per month as security. (See Dec. S. Singh, ¶ 17.) The first security deposit shall be made on January 1, 2020 and on the first day of every following month until further order of this Court or until the matters involved in the consolidated actions have been finally and completely disposed of and resolved, at which point the Court will order disposit...

Excerpt: ...aragraph 6, that Ali would pay Kante $12,500, and Kante would have the right to an additional $14,209.41 through an assignment and lien on Ali's share of any proceeds recovered by Ali "from any and all claims against Mid-Century Insurance, State Farm Insurance, Kevin Dawson or any other entity or person concerning [Ali's] claims concerning or relating to" Ali's house located at 7757 Hanson Drive, Oakland. Kante subsequently filed two motions to e...

Excerpt: ... Settlement Agreement provides that unclaimed funds will escheat to the Cal. Dept. of Industrial Relations ("DIR") Unclaimed Wages fund. However, according to the DIR's website at , the Labor Commissioner no longer accepts funds payable as a result of the settlement of private litigation. Nevertheless, if the parties (1) enter a modification of the Settlement Agreement containing a proper cy pres designation; and (2) file and serve an appropriate...

Excerpt: ...se of operating Moxy Beer Garden, a taproom and restaurant, at the premises, and that it was an intended beneficiary of the lease. Moxy alleges Perez breached the lease by failing to extend the lease at the request of Michael Voisenat, and instead requiring Moxy to execute a new lease, which never occurred. Moxy alleges that Michael Voisenat properly exercised the option to extend by notifying Perez by email of his intent, and seeks to enforce th...

Excerpt: ...red while driving at the intersection of Laurel Creek Drive and Foothill Drive in Pleasanton when she was hit by a car driven by Defendant Elijah Henry ("Henry"). (See the City's Separate Statement Facts ("SSF") Nos. 15-20 and the evidence cited in support.) A few minutes before the accident, Henry had been inside his car at the Laurel Creek Staging Area when he saw a police patrol car, driven by City of Pleasanton Police Office Matthew Harvey ("...

Excerpt: ... response to J-MM's subpoena, they suspected that J-MM had limited its request to specific job or jobs that it knew did not involve asbestos-containing pipe products. Plaintiffs served their own subpoena on WVWD shortly thereafter seeking all documents regarding WVWD's relationship with J-MM and documents regarding asbestos pipe. WVWD produced roughly 200,000 documents on November 19, 2019. J-MM claims it needs time to review these documents and ...

Excerpt: ...ts discretion" to "[s]trikeout any irrelevant, false, or improper matter inserted in any pleading." "In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff." (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255 [internal citations omitted].) "In passing on the correctness of a ruling on a motion to strike, judges read allegations of a ...

Excerpt: ...k driver for a company owned and operated by the other Defendants, negligently dropped and reached for his phone while driving, causing an accident and Plaintiffs' injuries. Plaintiffs' Complaint alleges causes of action for negligence, negligence per se, and negligent entrustment/hiring/training/supervision. Plaintiffs' Complaint also requests punitive damages. Defendants now move to strike punitive damages from the Complaint. "The court may, up...

Excerpt: ...r relief under Code of Civil Procedure section 473(b). (Mitchell v. Dept. of Transportation (1985) 163 Cal.App.3d 1016, 1021.) When a petition for relief is based on attorney fault and the petitioner is not challenging a default, default judgment or dismissal, the petitioner must establish that the attorney's neglect was excusable. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.) The Petition is not accompanied by a declaration...

Excerpt: ...the complaint arose out of his employment with TeneoBio. As such, he cannot be liable for interfering with Plaintiff's employment contract with TeneoBio, because corporate agents and employees acting for and on behalf of a corporation cannot be liable for inducing breach of the corporation's contract. (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1604.) Only noncontracting parties who interfere with the performance of a contract...

Excerpt: ...t MERS had no interest in the loan and was not a valid beneficiary and that there were irregularities in the assignments and substitutions of trustees, including the assignment to The Bank of New York Mellon because the individuals who signed the various assignments and substitutions did not have authority to do so. (FAC ¶21, 30, 32-112.) CIVIL CODE § 2934a Defendants demurrers to the first cause of action because it is unclear who it is allege...

Excerpt: ...s." (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] provision of law confers an unconditional right to intervene[;] [and/or] (B) [t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impa...

Excerpt: ...hat Plaintiff's motion is an improperly filed Motion for Reconsideration. See CCP § 1008(a). Defendants' argument has some merit, though the Court holds that Plaintiff can seek sanctions a second or third time if the underlying factual record changes over time. In this case, however, Plaintiff has made his request based on essentially the same record. There is very little in the Declaration of Andrew Reisman, CEO of Elijah Ltd., that was not exp...

Excerpt: ... accounts. While the injunction is in place, should Defendant wish to make a withdrawal related to his services as medical director or for any other purpose, Defendant must first present the request to the full Board of Directors. Only upon written approval of the full Board of Directors may the withdrawal be made. The court does not impose as a condition of the preliminary injunction a bond or undertaking. (See CCP sec. 529(a).) In deciding whet...

Excerpt: ...ntentions, 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.) PLEA IN ABATEMENT A defendant may demur to a complaint on the grounds that "another action [is] pending between the same parties on the same ca...

Excerpt: ...rise out of six construction projects. Dreambuilders was the owner of all six properties. In its First Amended Complaint, Dreambuilders alleges it hired Buildzig to provide construction management services, and manage distribution of loan funds, for all six projects. Dreambuilders and Buildzig, along with the construction lender or lenders for each project, entered into six Risk Control and Funds Control Services Agreements ("Agreements"). In tho...

Excerpt: ...ing or denial of a forum non conveniens motion lies within the court's sound discretion. (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 610-611; Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751-752; C.C.P. § 410.30(a).) In exercising its discretion, however, the court must bear in mind that the moving party bears the burden of proving that California is an inconvenient forum. (Ford Motor Co., supra, 35 Cal.App.4th ...

Excerpt: ... Defined Benefit Plan, and allegedly was involved in the fraudulent dealings alleged in the First Amended Complaint. Plaintiff, proceeding in pro per, states that her former counsel had represented that Solarius was an essential party but failed to include it in this action. Defendants argue that Plaintiff's motion is time-barred under Code of Civil Procedure section 583.210 which requires that "[t]he summons and complaint shall be served upon a ...

Excerpt: ...n any county "in which the unlawful practice is alleged to have been committed, ... or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office." Defendants contend that the alleged unlawful practi...

Excerpt: ...nd its non-profit subsidiary, The Institute for Medical Quality ("IMQ") as an Associate Administrator from February 22, 2017 to February 26, 2018. Plaintiff alleges that Defendant Julio Samper sexually harassed her throughout her employment with words and gestures. Plaintiff alleges that Defendants failed to take appropriate corrective action when she reported Defendant Samper's conduct. After taking a medical leave of absence due to her anxiety ...

Excerpt: ...ervices Agreements with Buildzig to perform funds control and construction management services with regard to six different construction projects. In those Agreements, Dreambuilders is identified as "Owner" and Buildzig is identified as "Consultant." Iron Bridge was a lender on three of the projects and it is identified as one of the "Lenders" in three of the Agreements. Dreambuilders alleges that Buildzig breached all six Risk Control and Funds ...

Excerpt: ...whole [; and] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." Because this code section is mandatory and considers only the health of the moving party, the Court may not engage in a weighing of interests or comparison of potential prejudice to the opposing party once it finds that the moving party has made its showing. (Fox v. Superior Court (2018) 21 Cal.App.5th 5...

Excerpt: ... that a Satisfaction of Mortgage ("SM") was recorded for the property on July 24, 2019. QLSC declares non-monetary status pursuant to Civil Code section 2924l. BANA has filed papers in opposition to the motion. For the reasons discussed below, the motion is DENIED. PROCEDURAL MATTERS Opperwall's motion is untimely. A motion for judgment on the pleadings may not be made against a defendant before the defendant has filed an answer and Plaintiff's t...

Excerpt: ...Joe's Co. Plaintiff's counsel has submitted a declaration including the As You Sow consent judgment, which includes a process by which the defendants in that case fund a panel of scientists to research and lower the "naturally occurring" levels set in that litigation. Plaintiff's counsel also declares that cocoa and cocoa powder are a commodity product whose source is not always readily ascertainable. This does not change the Court's analysis. Pl...

Excerpt: ...continue. The hearing on this motion will be CONTINUED to December 30, 2019, at 3:00 P.M. in Department 19, Administration Building (Third Floor), 1221 Oak Street, Oakland. A. Father Van Dinh's Clergy File. Plaintiff seeks production of certain documents maintained by RCBO as part of Fr. Van Dinh's "clergy file," which the parties both describe as containing the same kinds of personal information that may be included in employee personnel files. ...

Excerpt: ...e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Unless a heightened pleading standard applies, a complaint nee...

Excerpt: ...suant to Code of Civil Procedure section 425.16(c)(1). In their moving papers, Defendants sought to recover $51,322.50, based on legal fees of $44,392.50, statutory costs of $1,800, and costs of $5,130 for the expert testimony of Benjamin Shatz. The motion is supported by the declaration of Benjamin J. Shatz, a Certified Specialist in Appellate Law, who is offered as an expert witness. He opines that the requested hourly rates of $150 for paraleg...

Excerpt: ...e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Unless a heightened pleading standard applies, a complaint nee...

Excerpt: ...e, sec. 1043(b)(3).) A showing of "good cause" under section 1043 is established if the party seeking records demonstrates through affidavits a "plausible factual foundation" for how the records are material to the subject matter of the pending litigation. Materiality is measured by relatively relaxed standards that serve to insure the production of all potentially relevant documents. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655.) Defen...

Excerpt: .... In their earlier motion, Petitioners argued that the Respondent's mechanic's lien is invalid because Respondent failed to give notice to a purported construction lender. The Court initially tentatively denied the motion but continued the motion to allow for an evidentiary hearing on contested issues of fact. In the Petition before the Court today, Petitioners seek relief solely on the separate grounds that Plaintiffs' action to enforce the lien...

Excerpt: ...ugust 2, 2013. The subject property included a warehouse. This unlawful detainer action was commenced upon the expiration of a 3-day notice to quit, alleging that lessee Silverado Contractors, Inc. ("Defendant"), which operated a concrete and asphalt recycling facility at the premises, had breached material covenants of the lease by using the property for an illegal purpose (i.e., operating its business in violation of various Oakland municipal o...

Excerpt: ...r Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first." The court's record reflects that the courtroom clerk served the Decision and Order on the parties by mail on 8/9/19. Defendants filed their memorandum of costs on 8/26/19. The fifteenth day after the 8/9/19 service date was 8/24/19, a Saturday. The memorandum of costs ...

Excerpt: ...ny part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; or (3) a demand for judgment requesting relief not supported by ...

Excerpt: ...cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action[;] [or] (2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property." (CCP § 415.50(a).) "The court shall order ...

Excerpt: ...ended her complaint to substitute Defendant Doe 1 with Renoir. OHA states that it used Renoir's temporary staffing services to hire a temporary worker to make repairs to the staircase where Plaintiff slipped and fell. Renoir then made this motion seeking to be dismissed from Plaintiff's complaint and summons on the basis of sovereign immunity and Plaintiff's failure to exhaust her remedies before a tribal court. After the initial hearing on this ...

Excerpt: ...e, involving, but not necessarily limited to, "a manual search of the Outlook accounts of Will Jones and Carl Curry;" the "electronic information from Karen Hafstad and Karen Moubara," which was anticipated to be received by October 28, 2019; and the "results of those searches," which were anticipated to be completed by November 4, 2019. To the extent the documents and information referenced by or resulting from the above have not already been co...

Excerpt: ...etitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (CCP § 1281.2; see also CCP § 1281.7; cf. 9 USC §§ 1 et. seq.) Plaintiff filed her Complaint on July 22, 2019, alleging various causes of action in connection ...

Excerpt: ...premises of Plaintiff at the Property; and (3) possessing, selling, using, or destroying any of the business assets or property of Plaintiff located within the Property, until further order by the Court. "A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the 'interim harm' to that party if an injunction is denied is greater than 'the [inte...

Excerpt: ...l.App.4th 1058, 1068.) Here, Plaintiff's motion must be DENIED. Initially, Plaintiff's motion suffers from fatal procedural defects. Plaintiff did not file or serve her motion at least 16 court days before the hearing, as required, and, in fact, only filed it on October 21, 2019, 13 court days before the hearing. (See CCP § 1005(b).) Plaintiff has not, to date, filed a proof of service. Nonetheless, Defendant Sutter Bay Hospitals dba Eden Medica...

Excerpt: ...e policy favoring leave to amend is strong. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760-761.) Here, the main purposes of Plaintiffs' proposed amendment is to assert an affirmative defense based on waiver and estoppel. (See Dec. K. Jones, para. 7.) Trial in this matter is set for October 13, 2020, almost one year away. While Plaintiffs accuse Defendant of delay, the amount of time between the initial Answer and the filing of this mo...