Excerpt: ...st Bush, from August 5, 2019 to August 26, 2019. Defendant Cardinale's Cross-Complaint was not a part of the trial because the Court struck it and she did not file an Amended Cross-Complaint. On August 26, 2019, the jury returned a special verdict finding that Plaintiff failed to meet her burden of proof as to any claim in her pleadings and that Cross-Complainant Caron failed to meet her burden of proof on her Cross-Complaint. Judgment Creditor's...

Excerpt: ... of contract. Therefore, Spanier is entitled to his attorneys' fees for defeating that claim. (See, e.g., Santisas v. Goodin (1998) 17 Cal.4th 599, 611.) The Court determines that U Unlimited is the prevailing party on the contract for the reasons discussed in the Court's order on the motion by Homeowners to set aside judgment and enter new judgment, also heard this date. The parties' contract (at section VII) provided for attorneys' fees to the ...

Excerpt: ...nd signed by the Court did not waive their right to file a motion to amend the judgment. Homeowners seek to set aside the judgment entered on September 17, 2019 and enter a new judgment that is modified in the following respects. First, Homeowners seek to reduce the amount of the judgment awarded to U Unlimited from $245,998.26 to $149,115.70, to account for the judgment of $96,882.56 that Homeowners were awarded against U Unlimited. Second, Home...

Excerpt: ...deposited at least 600 escrow checks into her personal bank account. Old Republic is suing Citibank in this action for negligence. Citibank recently filed a Demurrer to Plaintiff's First Amended Complaint. The Court declines to stay the action or stay just discovery at this time. Although no formal charges have been filed by the District Attorney's office or the U.S. Attorney against Nguyen, the agreed factual record certainly supports an inferen...

Excerpt: ...izes Caron to recover $435.00 for the initial filing fee. 2. Bush's objection to the $1,000.00 in filing fees for Caron's Joinder in the Motion for Summary Judgment of Cardinale and for her own Motion for Summary Judgment is GRANTED IN PART. Bush correctly notes that the Joinder was procedurally deficient and would not have been granted even if the Court had granted Cardinale's Motion for Summary Judgment. See Frazee v. Seely (2002) 95 Cal.App.4t...

Excerpt: ... car turning right onto Powell Street while exiting eastbound I-80. The accident occurred on March 22, 2016. The Court notes that the driver of the vehicle that struck Plaintiff is not a party to this case. Plaintiff retained attorney Stephen H. Cornet to handle her personal injury case. On May 24, 2016, Mr. Cornet delivered a letter to Assistant City Attorney Andrea Visveshwara by electronic mail making a public records act request. Mr. Cornet w...

Excerpt: ...ggests that the video and screen shots at issue could be used for the purpose of derailing a train running along the non-public train right-of-way depicted in the video. Union Pacific has sufficiently demonstrated that, as to the unredacted documents lodged with the court conditionally under seal on September 26, 2019, and identified more specifically below: (1) there exists an overriding interest that overcomes the right of public access to the ...

Excerpt: ...agreement, after the Hayward property is sold, the net proceeds shall be placed in an escrow account, and the Lathrop property will then be appraised. The parties agreed to use that appraisal to calculate the difference between the net proceeds of the Hayward property sale and the appraised value of the Lathrop property. Thus, Plaintiff seeks an order directing the Receiver to have a new appraisal done, and to use the new appraisal to calculate t...

Excerpt: ...ded that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if 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 ...

Excerpt: ...4, 2019. The scope of the questions is limited to the deponent's recollection of events relevant to the claims against Alta and Marconi in this case. Mr. Cantley shall provide written responses under oath no later than December 10, 2019. Defendants may then submit 20 follow-up questions each by December 16, 2019, and Mr. Cantley shall provide written responses under oath by December 20, 2019. Plaintiffs seek an order excusing Robert Cantley from ...

Excerpt: ...ed Complaint without leave of court. Although a plaintiff may amend the pleadings once in response to a demurrer without obtaining leave of court, subsequent amendments require leave of court. (Code Civ. Proc., sec. 472; Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 578- 579.) For that reason, the Second Amended Complaint is deemed stricken. Although the demurrer to the First Amended Complaint is not mooted by the Second Amended Complaint, the ...

Excerpt: ... that his agreement is unenforceable. For the reasons stated below, Plaintiff's motion is DENIED. This action shall be stayed pending a final determination at arbitration. LEGAL STANDARDS The Federal Arbitration Act ("FAA") (9 U.S.C. §§ 1 et seq.) embodies a "liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary." (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp...

Excerpt: ...ion for negligent misrepresentation. (Alliance Mortg. Co. v. Rothwell (1995) 10 Cal.4th 1226; Reid v. Moskowitz (1989) 208 Cal.App.3d 29, 32.) The court therefore STRIKES Paragraph 224 from the Second Amended Complaint. For the reasons discussed in the concurrent demurrer, the court finds that Plaintiff has alleged sufficient facts to support a claim for Intentional Misrepresentation and the cause of action is not barred by the applicable statute...

Excerpt: ...liens by Plaintiffs Amamgbo & Associates, Emeziem & Others, and Daniel Donner (collectively "Plaintiffs") in an underlying personal injury lawsuit in Contra Costa County Superior Court, which motion was granted. Following the court's order granting the motion in the underlying personal injury case, Defendants disbursed the settlement funds in compliance with that order, without paying any money to Plaintiffs pursuant to their liens. Subsequently,...

Excerpt: ...arguments raised in opposition to the demurrer to the fifth and sixth causes of action. First Cause of Action for Violation of Civil Code 2923.5 and Second Cause of Action for Violation of Civil Code section 2924.17. The demurrer to the first and second causes of action for Violation of Civil Code section 2923.5 and 2924.17 are SUSTAINED WITH LEAVE TO AMEND. While Plaintiff has alleged sufficient facts to show that Defendant did not contact plain...

Excerpt: .... Reddy is trustee of a business that owns and manages apartment buildings in Berkeley, including two located at 2070 and 2076 University Avenue. On July 3, 2019, Jiboku posted a review of an apartment at 2076 University Avenue on Yelp in which he criticized how the apartment buildings at both 2070 and 2076 University Avenue were managed. As part of his posting, Jiboku also stated, "The main thought I will always be haunted by, is that, the real ...

Excerpt: ... 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, 318.)...

Excerpt: ...t ASI Computer Technologies, Inc. and the company's Chief Executive Officer. Marcel Liang is identified as one of the founders of ASI Computer Technologies, Inc. Plaintiff claims that he sued them for fraud because they both controlled the activities of ASI Computer Technologies, Inc. Plaintiff dismissed Defendants just before the commencement of trial in November 2018. Plaintiff's Motion to Tax Defendants' expert fees is GRANTED. Defendants' req...

Excerpt: ...) on the grounds that Plaintiffs failed to timely file an amended complaint, failed to seek leave of court to do so after the permitted time expired, and failed to provide the Court with a valid reason for the delay. (See Ntc. of Mtn., p. 2; Def.'s Memo., pp. 3-4.) Defendants have submitted evidence that Plaintiffs failed to timely file their SAC after Defendants' demurrer to the First Amended Complaint ("FAC") was sustained, and that Plaintiffs'...

Excerpt: ... cases raise essentially the same issues and assert the same claims. The earliest such case, Rittmann, et al. v. Amazon.com, Inc., was filed in the U.S. District Court for the Western District of Washington as a putative class action. Based on the current definition of the putative class, Plaintiff Reynolds would be a member if such a class were certified at a later time. As of this date, the parties in Rittmann have completed their briefing on A...

Excerpt: ... equitable grounds even if statutory relief is unavailable." (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 981.) "One ground for equitable relief is extrinsic mistake-a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits." (Id.; see also Weitz v. Yankosky (1966) 63 Cal. 2d 849, 854-855.) In order to receive equitable relief for extrinsic mistake, the moving defendant must meet thr...

Excerpt: ...ce IQ LLC, "PIQ") to Quash Service of Summons and Complaint for Lack of Personal Jurisdiction is GRANTED. On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, a factual basis justifying the exercise of jurisdiction. (See ViaView Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210.) Plaintiff Performance Max Inc. ("PMI") fails to do so here. Personal jurisdiction ...

Excerpt: ...ial Interrogatory No. 19; Special Interrogatories, Set Three, Special Interrogatory No. 20; Special Interrogatories, Set Three, Special Interrogatory No. 21; and Special Interrogatories, Set Three, Special Interrogatory No. 22. The further responses must be served within 30 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. Defendant's primary argument in o...

Excerpt: ...hom 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 the summons to be published in a named newspape...

Excerpt: ...l, causing injury. Plaintiff subsequently brought this action against Defendant, who he alleges owns and operates the Altamont Landfill. Plaintiff's Complaint alleges three causes of action against Defendant - negligence, premises liability, and negligence per se - each of which sound in negligence and carry the elements of duty, breach, causation, and damages. Defendant now moves for summary judgment, arguing all of the Complaint's causes of act...

Excerpt: ... closing arguments made at trial readily support the jury's findings against defendant on the issues of whether substantial evidence supports the jury's verdict, and whether the specific amounts of damages awarded by the jury were excessive. In addition, the Court rejects defendant's assertions that new trial is warranted due to purported errors of law, orders of the court, or claimed abuses of discretion and irregularities in the proceedings, wh...

Excerpt: ...fendants Alameda Health Systems ("AHS") and Narayan Travelstead Professional Law Corporation's (collectively, "Defendants") Motion to Designate Plaintiff as a Vexatious Litigant. The Court held Defendants had not met the first and second prong of the vexatious litigant statute because the federal and state cases against AHS were still pending and/or on appeal so there had not been any final determinations, and Plaintiffs' subsequent actions did n...

Excerpt: ...tlor's proportionate liability, the amount paid in settlement, . . . a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial, . . . as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants." (Tech-Bilt, Inc. v. Woodward-Clyde and Assocs. (1985) 38 Cal. 3d 488, 499.) The Court finds the settlement for $10,000.00, which Telgian wi...

Excerpt: ...2010) 48 Cal.4th 788, 797.) Defendant's Request for Judicial Notice demonstrates that Plaintiffs have filed three prior actions alleging some impropriety with nonjudicial foreclosure proceedings against the real property that is the subject of this action, and that those actions have all been decided adversely to Plaintiffs. (See Defendants' Request for Judicial Notice Exhibits 2, 4, 6, 10, and 20.) The Court observes, however, that Defendants di...

Excerpt: ...y of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id....

Excerpt: ... 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: ...duled for January 27, 2020. As noted in the moving papers, a motion for summary adjudication generally must be heard at least 30 days before trial. (See CCP sec. 473c(a)(3).) However, the Court for good cause can order otherwise. (See id.) Here, the Court finds several reasons constituting good cause for allowing the hearing on the motion for summary adjudication to be heard less than 30 days before trial. Defendants have provided evidence that t...

Excerpt: ...ted claims for fraud, intentional interference with prospective economic advantage, breach of contract and breach of the implied covenant of good faith and fair dealing. The Court has reviewed the unredacted version of the Complaint and the newly redacted Complaint lodged by Plaintiff. The Court notes that Plaintiff has impliedly withdrawn many of the proposed redactions in the original Complaint. Plaintiff's publicly filed Complaint is almost co...

Excerpt: ...ection 835, and common carrier liability under Civil Code section 2100, against both BART and Does 1-25, who are alleged to be BART employees. BART demurs to both claims on behalf of DOES 1-25, arguing there are no facts alleged that establish liability by any individual employees. Neither Government Code section 835 nor Civil Code section 2100 appears to provide for liability by an individual public employee. Furthermore, Plaintiff fails to addr...

Excerpt: ...83.310 ["An action shall be brought to trial within five years after the action is commenced against the defendant."].) On July 6, 2015, the Court set a trial date of July 15, 2016. On June 21, 2016, this was continued by stipulation to January 13, 2017. On January 4, 2017, that date was continued to January 26, 2018. On January 10, 2018, the trial date was dropped by stipulation. On May 1, 2018, the Court set a new trial date of April 26, 2019. ...

Excerpt: .... R. Landis, Exh. A.) Accordingly, Plaintiff's motion to compel is DENIED AS MOOT. The adequacy of these further responses is not presently or properly before the Court. The Court cannot appropriately address the amended responses here because the record before the Court in regards to those amended responses is necessarily incomplete, given that they were served after this motion was filed. The separate statements of the parties do not address th...

Excerpt: ...ests that constitute an undue burden to OUSD. OUSD's argument is that, by slightly varying the content and terms of the requests at issue. OUSD's examples include special interrogatories asking for all persons who "assisted in the preparation of" a board resolution, all persons who assisted in the preparation of the factual findings therein, and the official duties of all persons named in those answers. (Special Interrogatories Nos. 3-5, 8-10, 13...

Excerpt: ... or City of Oakland heavy weight rules in respect to its drayage operations at the Port of Oakland. Dreisbach also seeks an order requiring PCC to submit compliance reports every 30 days. "In deciding whether to issue a preliminary injunction, a court must weigh two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of t...

Excerpt: ...w Defendant Julia Chung shall respond to the SAC, after it has been served, as provided by the Code of Civil Procedure. "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 amended complaint. (See Cal. Gasoline Retailers v. Regal Petroleum Corp. (1958) 50 C...

Excerpt: ...eement in its current form. In lieu of denying the motion, the hearing on this motion is CONTINUED to January 27, 2020, at 3:00 P.M. in Department 19, Administration Building (Third Floor), 1221 Oak Street, Oakland, to provide the parties an opportunity to revise the Settlement Agreement and provide supplemental material RIGHT TO ORAL OBJECTIONS SHOULD NOT BE WAIVED BY FAILURE TO OBJECT IN WRITING The class notice currently states that "even if y...

Excerpt: ...que Martinez ("Martinez") in a personal injury case he filed in Contra Costa County ("the Contra Costa case") in 2011; Defendants Eric Williams and MacMorris & Carbone were retained by CSAA Insurance Group as attorneys for Ennis Mayberry, the defendant in the Contra Costa case. Later that year, Morgan became attorney of record for Martinez, and Plaintiffs filed a notice of lien in that case. Sometime thereafter, counsel in the Contra Costa case r...

Excerpt: ...ously existed as ARDA LLC fka Anson's Group LLC, or that it had previously done business under other names. The lease is not attached to the complaint. However, the notice, attached to the complaint as Exhibit 2, quotes paragraph 38 of the lease. The court finds that the plain language of paragraph 38, as stated in the notice, fails to identify a breach of any obligation under the lease, because it merely identifies grounds under which plaintiff ...

Excerpt: ...by ATS, acting as the collection agency for FCOA, that they owed fees in the amount of $1,378.39. On September 24, 2014, FCOA recorded a Notice of Delinquent Assessment ("the lien notice") in that amount on Plaintiffs' real property. On November 6, 2014, Plaintiffs sent a letter to FCOA and ATS disputing that they owed FCOA the amount indicated on the lien notice. In 2017, FCOA filed a small claims lawsuit against Plaintiffs to collect the debt i...

Excerpt: ...of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "Th...

Excerpt: ...h. On 2/15/18, the court issued an order dropping the motion for summary judgment from the calendar without prejudice. The order also stated, "This action is STAYED pending appointment of a personal representative of Mr. Ginn's estate or his successors-in-interest." On 8/7/18, Plaintiffs filed a first amended complaint in which Mrs. Ginn individually and as representative of her husband's estate, asserted claims for wrongful death. Sadly, on 9/5/...

Excerpt: ...laintiffs allege that decedent received poor care, including lack of prescribed physical therapy, lack of assistance with personal hygiene, and unhygienic conditions such as soiled linen. Plaintiffs allege that decedent's health declined in April 2017, because of the lack of care, substandard care, and unhygienic conditions. Decedent was transferred to Highland Hospital in June 2017, where he was diagnosed with clostridium difficile. Plaintiffs a...

Excerpt: ...3, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by the de...

Excerpt: ...d to be heard in January of 2020. By providing an ample amount of time to amend, the Court is attempting to allow Plaintiffs the opportunity to prepare, file, and serve a single amended complaint that takes into account each of the orders on the various motions to strike, including this motion and the other pending motions. This action arises out of an alleged incident that occurred on a moving walkway installed at a supermarket by the Moving Def...

Excerpt: ...rosecuting Plaintiff as part of People of the State of California v. Harrison, Alameda County Superior Court case no. A132658 (the "Criminal Case"), which resulted in Plaintiff's conviction in 2011. Specially, in this civil action, Plaintiff alleges the Moving Defendants' prosecutorial conduct in the Criminal Case has violated Plaintiff's rights to a fair trial, due process, and a constitutional right to a speedy trial. The Moving Defendant now s...

Excerpt: ...ded Complaint. Plaintiff Fuller began working for the County of Alameda in its Temporary Assignment Pool ("TAP") in 2006. She worked as a Food Service Worker in the kitchens of Juvenile facilities of the County Probation Department. Plaintiff and other workers in the TAP would fill in for employees who were on vacation or on a leave of absence. Plaintiff and other workers in the TAP also filled vacant positions while managers engaged in the recru...

Excerpt: ...No. HF12626309 on September 23, 2013. However, the Court also concluded that the Estate's breach "does not support Plaintiff's claimed entitlement to the 'true assessed value of her community property interest in the real property and business.'" (Aug. 10, 2019 Statement of Decision at p. 7.) "Thus, the damages owed by the Estate for the breach of contract found here are simply contract damages allowed by law." (Id.) "At any time after notice of ...

Excerpt: ...ased. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67...

Excerpt: ...ies and acts of violence on its property but did not provide notices warning that robberies, theft, and violent acts frequently occur in BART stations and cars. Plaintiff further alleges that BART security cameras were inoperable, and the fact that cameras are frequently inoperable is widely known to would-be criminals. Plaintiff also alleges that BART did not have an employee present in the attendant booth at the time of the attack, and it is wi...

Excerpt: ...rit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if 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 ...

Excerpt: ...3, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by the de...

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: ...iff filed her initial Complaint nearly three years ago. Plaintiff's motion is granted as to Plaintiff's request to supplement her paragraphs 13.1 and 15.1. The Court understands that Plaintiff claims that the District, and in particular Maggie Riddle, gave preference to white administrators within the District and violated the district policy regarding transfers and demotions of administrators. Plaintiff's proposed supplemental language merely su...

Excerpt: ...Defendant argues the Courts of the State of Alaska would be a better jurisdiction for Plaintiff's claims to be heard. "Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere." (Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 151...

Excerpt: ...t judgment is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). The moving papers refer to arm's length negotiations in determining the amount of the civil penalty and references information such as sales records to support argument that the assessed penalties are reasonable. The parties have submitted additional sales information in the form of a declaration from Todd Marcukaitis. While the declaration des...

Excerpt: ...nt with leave to amend. Cross-Complainant filed its First Amended Cross-Complaint on September 3, 2019. Cross-Complainant substantially supplemented its factual allegations in support of its claim of delayed discovery. Cross-Complainant also added allegations that Clark Smith, the Managing Member of CrossLink Networks, LLC, made representations that led Cross-Complainant to believe that it did not need to file a lawsuit to recover the amount owed...

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

Excerpt: ...actor's license. WSC alleges that it is entitled, pursuant to Business and Professions Code section 7031(b), to recover all the compensation it paid to MPI, in the sum of $1,969,885.92, under the subcontract. In the Second Amended Complaint in this action, Plaintiff Terrence Johnson dba Masterpiece Painting alleges that he performed work on the Warm Springs Project under the subcontract with WSC, for which it he has been paid. There was an earlie...

Excerpt: ...t." (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 testing a pleading...

Excerpt: ...horized by contract. (Code of Civ. Proc. § 1033.5(a)(10)(1).) Willig offers evidence that its lease with Espresso Roma included an attorney fees clause allowing the party prevailing on a dispute under the lease to recover reasonable attorney fees. (Compl. Ex. A, p.15, § 31 ["If any Party . . . brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party ....

Excerpt: ... objects that CCIE's motion papers do not include a separate statement under Rule 3.1345(a)(5). CCIE responds that no separate statement is required when "no response has been provided to the request for discovery." (R. Ct. 3.1345(b).) The Court finds that no separate statement was required under Rule 3.1345 and that, even if one were, Plaintiff was not prejudiced by the absence of a separate statement. II. SERVICE OF MOTION ON FAY SERVICING Noti...

Excerpt: ...as to all causes of action except Breach of Warranty of Habitability and Wrongful Eviction, is ruled upon as follows: The motion for judgment on the pleadings on the First Cause of Action for Breach of Covenant of Quiet Enjoyment is DENIED. In their First Amended Cross-Complaint, Tenants allege that Bay Co. interfered with their tenancy in various ways, and eventually forced them to vacate the premises. This is the basis for the First Cause of Ac...

Excerpt: ...n award of attorney fees and costs that are not related to the anti-SLAPP motion. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433.) Defendant is also entitled to recover statutory costs as the prevailing party in this action. (Code Civ. Proc., sec. 1032(a)(4), (b).) There is no dispute that Defendant is entitled to recover statutory costs of $538.50 incurred in this action and statutory costs of ...

Excerpt: ... Bay Co.'s claims for breach of contract and quantum meruit, and (4) for the return of $25,000 held in court escrow is ruled upon as follows: The request for the return of $25,000 held in court escrow is moot. On October 3, 2019, the court ordered that Tenants' funds held by the court pursuant to the court's previous order shall be released upon Tenants' request. The motion to vacate the dismissal entered on September 23, 2019, (and again on Octo...

Excerpt: ...s "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Hobby Lobby employed and employs the employee/witnesses and has their names and contact information. Plaintiffs sought the names and contact information of the employee/witnesses. Following a Belaire-West process, Hobby-Lobby provided the names and contact information to plaintiffs. (Cabral Dec., para 2.) Counsel for pl...

Excerpt: ...ff's response to SSF Nos. 13, 15, and 17-22.) Such tactics made reviewing this motion considerably more time consuming. Plaintiff Deborah Evenich alleges that when she was employed as a teacher at the Steffan Manor School in Vallejo, California, she was exposed to asbestos-containing materials following abatement project conducted in 1997 by defendant Professional Asbestos Removal Corporation and overseen by NAL. NAL propounded comprehensive cont...

Excerpt: ...il 15, 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. Plaintiff is ORDERED to consult with her disclosed experts Robert Bresee, Thomas Irmiter, and Tamara Spokane, as is necessary, to obtain the information to respond to these interrogatories. If Plaintiff claims she cannot obtain the infor...

Excerpt: ...efore 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 amended complaint. (See Cal. Gasoline Retailers v. Regal Petroleum Corp. (1958) 50 Cal. 2d 844, 851; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760-761 [finding that the policy favoring leave to amend is strong].) Generall...

Excerpt: ...and the deposition notice in August 2019. The Court compared the five (5) subjects set forth in the subpoena and notice and compared them with the three (3) subjects in Plaintiff's subpoena served on May 13, 2019. The Court cannot agree with the City's assertion that the five (5) subjects are duplicative or that designating one or more of its employees to appear for deposition will be unduly burdensome in view of the issues in this high-value cas...

Excerpt: ...Sunny Slope Water Co. v. Pasadena (1934) 1 Cal.2d 87, 99; Walton v. Bank of California (1963) 218 Cal.App.2d 527, 548.) "The fees for transcripts and copies ordered by the parties must be paid by the ordering party." (7 Witkin, Cal. Proc. 5th Judgm § 135 (2008), citing Gov. Code § 69953; Mt. Shasta Power Corp. v. McArthur (1931) 111 Cal.App. 640, 641.) 2. Respondent's request for $319 in duplication costs for copies of "exhibits" attached to se...

Excerpt: ...Street Fitness, Inc.; Fillmore Fitness, Inc.; Mid Market Fitness, Inc.; Superblock Fitness, Inc.; and Transbay Fitness, Inc., which operate Fitness SF locations in the city and County of San Francisco. In his First Amended Complaint, Howell alleges that Fitness SF pays its trainers a percentage basis commission based on its billing to clients and fails to pay its trainers for time spent working without clients, fails to provide off-duty meal and ...

Excerpt: ... rough approximation of plaintiff's total recovery and the settlor's proportionate liability, the amount paid in settlement, . . . a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial, . . . the financial conditions . . . of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants." (Tech-Bilt, Inc. v. Wo...

Excerpt: ...ke Portions of the Fourth Amended Cross Complaint is GRANTED IN PART AND DENIED IN PART. As a threshold matter, the Court took into consideration Elstead's untimely oppositions to the Demurrer and Motion to Strike as Cross-Defendants were able to substantively respond to Elstead's arguments in reply. Elstead is admonished to comply with the procedural rules and deadlines with respect to filings and service in all future filings. PROCEDURAL HISTOR...

Excerpt: .... (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 action or discloses a complete defense." (Id...

Excerpt: ... Plaintiff alleges that during recess, she was assaulted by a group of boys. Plaintiff alleges that there were no paid employees on the playground, and the one volunteer on the playground only intervened after the assault occurred. Plaintiff alleges that District has failed to discipline Boy 1 or keep him away from Plaintiff, and has allowed Boy 1's parents to question Plaintiff during school hours on school property, without her parents present....

Excerpt: .... . . ." Defendant has not filed any opposition to the motion or made any argument contesting Plaintiff's right to recover principal in the amount of $2,898.00. (See CCP sec. 438.) Should Defendant submit a late-filed opposition, the Court exercises its discretion to disregard any such late-filed document. (Cal. R. Ct., Rule 3.1300(d).) Plaintiff's motion is GRANTED WITHOUT LEAVE TO AMEND. Although the motion also seeks costs pursuant to the Memo...

Excerpt: ...(collectively "J&J"). Plaintiff alleges that Defendant is a "Talc Defendant." Plaintiff alleges that Defendant Rio Tinto Minerals, Inc., a Utah corporation, is the successor-in-interest, parent, alter ego, and equitable trustee of Rio Tinto Minerals, Inc., a Delaware corporation. Plaintiff alleges that all the named Defendants manufactured, sold, distributed, or otherwise placed into the stream of commerce talc powder products containing asbestos...

Excerpt: ...egligent Hiring, Training, and Supervision, and (5) Conspiracy. Then, following the prayer for relief and several pages of proofs of service, there is a Judicial Council form Complaint "Second" Cause of Action for "Intentional Tort," and a Judicial Council form Complaint "First" Cause of Action for "General Negligence." For purposes of clarity, the Court will refer to the cause of action for "Intentional Tort" as Plaintiff's Sixth Cause of Action...

Excerpt: ...rds do not reflect that attorney Huma Ellahie has ever represented Defendant Ariba Investments LLC, which was defaulted on March 25, 2017 without having made an appearance in this case. Huma Ellahie's law firm, Ellahie & Farooqui LLP, was at one point the attorney for Defendant Shariq Mirza, but he has represented himself since September 21, 2017, when a substitution of attorney was filed and served on Plaintiff's counsel. Second, the Stipulation...

Excerpt: ...han within two weeks of the date of this Order, unless the parties stipulate otherwise. Plaintiff's mental state remains in controversy. Plaintiff has not sought leave to amend her complaint to change her allegations to that effect. Plaintiff has not stipulated to limit her evidence at trial. While Plaintiff has proposed a stipulation, the language of Plaintiff's proposal is inadequate to obviate a mental examination, because it does not limit Pl...

Excerpt: ... order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (CCP § 1281.2; see also CCP § 1281.7; 9 USC §§ 1 et. seq.) Plaintiff filed his Complaint on June 28, 2019, alleging various causes of action in con...

Excerpt: ...hen Defendant Nick Zadrozny, the Chief Executive Officer and other Director on the Board, purported to have Plaintiff removed as a Director and to terminate Plaintiff as a corporate officer in May 2015. Plaintiff's Fourth Cause of Action for Declaratory Relief is simply a restatement of his allegations and contentions in the Second and Third Causes of Action. Defendant One More Cloud contends in its motion that the Court should enter summary judg...

Excerpt: ... San Diego v. Superior Court (2018) 30 Cal. App. 5th 457, 469.) Although the right to counsel of one's choice is an important one, it "must yield to ethical considerations that affect the fundamental principles of our judicial process." (Id.) "At the same time, courts have recognized that a disqualification order is not without cost." (Id.) "[I]t must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified...

Excerpt: ...(See CCP sec. 430.10(e), (f).) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (Del E. ...

Excerpt: ...application shall be executed under oath and shall include: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, acco...

Excerpt: ...tiffs failed to provide adequate notice for this Motion, which should have been served by October 9, 2019 by overnight mail. Instead, the Motion was not served until October 11, 2019. Plaintiffs are admonished to comply with the applicable rules for service in the future. Nevertheless, as Defendants were able to substantively respond, the Court shall rule on the Motion. Plaintiffs seek an order requiring Defendants Red Oak Realty, Inc. ("Red Oak"...

Excerpt: ...ing OE3 as the ACMEA Union; (c) representing OE3 as the current representative of AMCA members regarding the terms and conditions of employment; (d) representing ACMEA and ACMEA members regarding corporate affairs, elections, and terms and conditions of employment, other than the notice of transfer of files and preservation of deadlines during the transfer; (e) obstructing ACMEA's demand to turn over files regarding representation of ACMEA member...

Excerpt: ...ment 517 on October 24, 2018. The Court declines to summarize the procedural history of the case as it has been described sufficiently in its prior orders. Plaintiff's operative Third Amended Complaint was filed on April 10, 2019. Defendants have moved for judgment on the pleadings as to the following causes of action: (1) First Cause of Action for Slander Per Se; (2) Second Cause of Action for Libel under California Law; (3) Third Cause of Actio...

Excerpt: ...finance for the two of the properties under her name alone, and Wendy Tang would manage the properties. A grant deed dated December 12, 2018 stated that Plaintiff was entitled to a 25% ownership and rental income of the subject properties, and Defendants would be entitled to the remaining 75% ownership and rental income. For the third property, Plaintiff and Wendy Tang orally agreed to a different arrangement wherein Plaintiff would be entitled t...

Excerpt: ...mplaint no later than December 3, 2019. Defendant's Motion to Strike is DENIED. STANDARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual alle...

Excerpt: ...rrer, or motion to strike 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(a).) "A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties." (Id.) Plaintiff filed ...

Excerpt: ...ement with Defendant. Plaintiff asserts claims for (1) failure to pay overtime wages; (2) failure to provide meal periods; (3) failure to provide rest breaks; (4) failure to pay minimum wages; (5) failure to timely pay wages; (6) failure to provide accurate and itemized wage statements; (7) collection of due and unpaid wages; (8) and violation of Business & Professions Code Section 17200. Defendant's Motion to Compel Arbitration, Strike Class Cla...

Excerpt: ...y approved the settlement agreement on July 10, 2019, and ordered the parties to give notice of the settlement to the absent class members. The Court CONFIRMS its Order of July 10, 2019, certifying a class for settlement purposes. The Court APPROVES the Settlement Agreement. The Court has considered (1) the relative strength of the Plaintiffs' case; (2) the high risk, expense, complexity, and likely duration of further litigation of this dispute;...

Excerpt: ... below, the motion is DENIED. LEGAL STANDARDS The purpose of summary judgment and 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.) Summary judgment is prope...

Excerpt: ...ies an opportunity to address concerns with the form of notice and contents of the proposed settlement agreement. The parties have submitted an Amended Settlement Agreement and revised class notice, and the Court now considers the sufficiency of those documents as revised. When no class has been certified, as is the case here, the Court must determine whether the case meets requirements for certification. (See Anchem Prods., Inc. v. Windsor (1997...

Excerpt: ...v. Proc. § 1005(b).) Plaintiffs served their motion papers on opposing counsel on October 29, 2019, and filed them with the Court on October 30, 2019. The noticed hearing on this motion is November 4, 2019. The motion was, in short, filed on the third Court day before the hearing. Furthermore, the settlement agreement purports to settle claims raised under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Lab. Code §§ 2698 et seq....