Excerpt: ...re section 2034.610 permits a party to seek to "[a]mend that party's expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give." (See also Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1039 [stating that a trial court's determination to grant relief will not be disturbed absent a showing of abuse of discretion].) In deciding a motion made under section 2034.61...

Excerpt: ...or all purposes. The separate action is currently being prosecuted by Ms. Fisher's successor in interest. Plaintiff Morken alleges that the sales representatives of Vivint Solar, Inc. and Vivint Solar Developer, LLC prey upon individuals who do not know their legal rights. In this case, after Plaintiff's elderly mother expressed interest in having solar panels installed on her roof, Tyler Williams, Defendants' Regional Vice President of Sales Wes...

Excerpt: ...cation as to each of the First through Eighth Causes of Action therein. Because summary judgment may be granted only if Defendants are entitled to judgment as to each and every cause of action (see C.C.P. § 437c(c)), the court proceeds by addressing the motion for summary adjudication as to each such cause of action. A. First Cause of Action The motion for summary adjudication as to the First Cause of Action is GRANTED. This cause of action alle...

Excerpt: ...ready amended its pleading once as a matter of right. (See CCP sec. 472.) Nonetheless, the Court now deems the SAC filed, as of October 15, 2019. As the SAC is the operative pleading, ILTS LLC's demurrer to the FAC is MOOT. ILTS LLC shall respond to the SAC, by answer, demurrer, or other procedural device permitted by the Code of Civil Procedure, no later than December 5, 2019. The Court does not reach the substantive arguments of the present dem...

Excerpt: ...n 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 against a d...

Excerpt: ...se of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593...

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: ...Trust (Dated August 20, 1997) is DISMISSED. STANDARD OF LAW FOR DEMURRER "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; see also CCP sec. 438 [discussing motions for judgment on the pleadings]; Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [same].) The Court must determine "whether the complaint alleges facts sufficient to state a c...

Excerpt: ...d Ali (collectively, "Defendants") based upon the failed short sale of real property located in Berkeley, California (the "Property"), wherein Plaintiffs entered into an agreement to purchase the Property and allege that Defendants mishandled the lender approval process for the short sale. Plaintiffs allege claims for breach of fiduciary duty, professional negligence and negligent misrepresentation. Plaintiffs and Defendants entered into a settle...

Excerpt: ...ary Judgment is granted because it has made the required prima facie showing that no triable issues of material fact remain regarding Plaintiff's claim that the City had actual or constructive notice that the tree or tree branches that fell on her vehicle were in a dangerous condition. See Govt. Code § 835; and Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The City has counted approximately 200,000 trees in its parks and along it...

Excerpt: ...)(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 to any cause of action, that there is no merit to a claim for damages . . . ...

Excerpt: ...plications 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 claim that they have since identified defects in the claims in th...

Excerpt: ...filing an opposition to Defendant's Demurrer, without leave of Court or stipulation between the parties. Thus, the November 4, 2019 First Amended Complaint is hereby STRICKEN. 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 disclo...

Excerpt: .... 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; Blank v. Kirw...

Excerpt: ...response to the Tenth Cause of Action or additional affirmative defenses related to the Tenth Cause of Action. Defendant is not permitted, at this time, to amend any other portion of her previously-filed Answer. "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 o...

Excerpt: ...the page limit in their Motion for Judgment on the Pleadings, and now by violating California Rule of Court, Rule 2.104 with respect to the font size by using size 9.5 to 10.5 font instead of size 12 point font. Though they blame their printers, they are required to ensure compliance with the Rules of Court. If there are any further papers in this action and Erchinger Defendants continue to violate the Rules of Court, the Court shall consider san...

Excerpt: ...sel for Plaintiff gave notice of the settlement to the Court on that same date. Defendant Wente Bros. agreed that it would pay Plaintiff and his attorneys the sum of $1,090,000 no later than twenty-one (21) days after September 6, 2019. Plaintiff Munoz agreed to dismiss his action against Defendant with prejudice within ten (10) days of his and his attorneys' receipt of the four separate checks. In paragraph 11 of the Term Sheet, the parties agre...

Excerpt: ...nt due on January 15, 2019. Defendant significantly does not dispute Plaintiff's assertion that it has made only six monthly payments and a $2,000 partial payment. The motion is granted in part because the Court does not agree with Plaintiff's apparent contention that it should enter a Judgment for only the payments that Defendant has missed to date. The Court will instead enter a Judgment in the sum of $125,000.00 with the payments made to date ...

Excerpt: ...putes some of the facts in the Complaint but asserts no affirmative defenses. After Defendant failed to respond to Plaintiff's Requests for Admissions, the Court entered an order deeming the admissions admitted on March 14, 2019. STANDARD OF LAW FOR MOTION FOR JUDGMENT ON THE PLEADINGS A court may grant a motion for judgment on the pleadings "[i]f the moving party is a plaintiff," and "the complaint states facts sufficient to constitute a cause o...

Excerpt: ...uses 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 not owe a duty to ...

Excerpt: ...ny pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of the proceeding[.]" (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 488-89.) A court's discretion is usually exercised liberally to permit amendment of the pleadings, and it is a rare case in which denial of leave to amend can be justified. (See, e.g., Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) "[I]t is an abuse...

Excerpt: ...iled a First Amended Complaint that also asserted that his vehicle was equipped with a dash camera that recorded video of the traffic accident. On 7/30/19, the court ordered plaintiff to provide responses by 8/12/19. On 8/8/19, Plaintiff provided responses to the Form Interrogatories, but not to the request for documents. On 10/4/19, defendant filed this motion. On 10/28/19, plaintiff filed an opposition, asserting that on or about 3/28/19 the vi...

Excerpt: ...imely filed. On 10/24/19, after this motion was filed, Defendant filed notice of an undertaking. Defendant urges the court to deny this motion on the ground that it was not served in accordance with the requirements of CCP §1005(b). Defendant's opposition addresses the motion's merits, and does not demonstrate any prejudice arising directly from the service issue. Accordingly, the court considers the motion on its merits. Cal.Labor Code §98.2(b...

Excerpt: ...errogatory No. 17.1, to produce responsive documents, and for an award of monetary sanctions, is ruled upon as follows: Plaintiff concedes that it has not provided supplemental responses to Requests for Admission, Set Two, Nos. 163B-188, and corresponding Form Interrogatory No. 17.1. These requests relate to EPDM. Plaintiff asserts that it anticipates that responses to the Requests for Admission and Form Interrogatory No. 17.1 will be provided by...

Excerpt: ...ther, it is QUASHED. Tri-Center Health Center may produce its records related to Plaintiff in regards to August 13, 2018. Plaintiff has filed an action against Defendants alleging various causes of action related to injuries related to an allegedly defective food product she claims was sold to her by Defendants. In her First Amended Complaint ("FAC"), among other allegations, Plaintiff alleges, after purchasing the food product from Defendants sh...

Excerpt: ...or Fair Franchising v. Southland Corp. (2000) 85 Cal. App. 4th 1135.) In reviewing class settlements, the Court acts both as a neutral decision maker and as a guardian of the absent class members. (In re Warfarin Sodium Antitrust Litig. (3rd Cir. 2004) 391 F.3d 516, 534 ["the district court acts as a fiduciary who must serve as a guardian of the rights of absent class members"].) Class actions cannot be dismissed without Court approval. CRC 3.770...

Excerpt: ... (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 ag...

Excerpt: ... that were used during, and after, Serrato's employment with PDI, but the requests do not limit inspection to devices or cloud-based storage accounts that have been used in connection with Serrato's employment with PDI or whichcontain data relating to Serrato's employment with PDI. All of PDI's requests shall be limited to devices and cloud-based storage accounts that were used in connection with Serrato's employment with PDI or contain data rela...

Excerpt: ...tained a traumatic brain injury as a result of the collision and currently has symptoms of a post-traumatic stress disorder. Counsel for Plaintiff and Defendant do not disagree about the necessity of a neuropsychological examination. Counsel simply disagree about the conditions that each side wants to impose on the examination. The Court met with counsel for an informal discovery conference on September 18, 2019. The Court begins by overruling th...

Excerpt: ...ME after it had started without good cause. The court is not convinced that the failure to come to an agreement on the conditions of the examination constitutes a waiver of Defendant's right to move to compel an IME by Dr. Strassberg. The court therefore compels that Plaintiff participate in an IME with Dr. Strassberg, subject to the following conditions discussed below. After reviewing the evidence presented in support of the motion and the decl...

Excerpt: ...motions for reconsideration. To the extent that they might be motions for reconsideration, the court exercises its discretion and will consider the motions on the merits. PLEADING SPECIFICITY A complaint must include "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (CCP 425.10.) A complaint "ordinarily is sufficient if it alleges ultimate rather than evidentiary facts." It is adequate if the complai...

Excerpt: ...ing leave to amend is strong. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760-761.) Here, the main purpose of Plaintiffs' proposed amendment is to add a cause of action for retaliation alleging she was forced to resign a faculty position by Defendant in retaliation for seeking to enforce her rights. Plaintiff does not seek to add additional defendants to the action. Trial in this matter has not yet been scheduled. Given the length of t...

Excerpt: ...ontinuance only on an affirmative showing of good cause requiring the continuance." (Cal. Rules of Court, Rule 3.1332(c).) Circumstances that may indicate good cause include the unavailability of a party, witness, or trial counsel because of death, illness, or other excusable circumstances, substitution of trial counsel, addition of a new party under certain circumstances, a party's excused inability to obtain essential testimony, documents, or o...

Excerpt: ...fuses to arbitrate such controversy, the court shall 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.) Here, Plaintiff filed his Complaint ...

Excerpt: ...fety Code section 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $2,000.00 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b); and (E) and the allocation of any additional settlement payments to Plaintiff is in the public interest as set forth in Code of Regulation...

Excerpt: ...Plaintiffs' injuries caused by FastTrack Inc., because the single enterprise/alter ego doctrine dictates that the limited liability protections that usually insulate separate corporations from liability for the other corporation's debts do not apply under the circumstances of the case. Plaintiffs now move for summary adjudication, asking the Court to determine, as a matter of law, that DODG is liable for FastTrack Inc.'s debts under the single en...

Excerpt: ... 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. Webb Corp. v. Structural Materials Co. (1981) 1...

Excerpt: .... 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 against a demu...

Excerpt: .... 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 against a demu...

Excerpt: ...e 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. Woodward-Clyde and Assocs. (1985) 38 Cal. 3d 488, 499.) The Court finds the settlem...

Excerpt: ...." (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.) "California law, like federal law, favors enforcement of valid arbitration agreements." Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97. The California Arbitration Act requires courts to enforce arbitration clauses. (CCP §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies w...

Excerpt: ... section 391(b)(3) defines a "vexatious litigant" as a persion who "[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers . . . ." Here, Plaintiff Lisa Renee Henderson meets the criteria for a vexatious litigant set forth in both subsection (b)(1) and (b)(3) of Code of Civil Procedure section 391. Presently, within the last two years, Plaintiff has filed at least five actions in th...

Excerpt: ...aneously with this motion. (Decl. of E.A. Grover ¶ 16; Decl. of R. Spence ¶ 2.) The LWDA has not appeared in this action to offer comments on, or objections to, the proposed settlement. In his First Amended Complaint, Picou also purports to state claims on behalf of an absent plaintiff class. Picou requests that the Court dismiss these causes of action without prejudice and consider this matter only as a claim for civil penalties under PAGA. Fo...

Excerpt: ...Plaintiffs' injuries caused by FastTrack Inc., because the single enterprise/alter ego doctrine dictates that the limited liability protections that usually insulate separate corporations from liability for the other corporation's debts do not apply under the circumstances of the case. Plaintiffs now move for summary adjudication, asking the Court to determine, as a matter of law, that DODG is liable for FastTrack Inc.'s debts under the single en...

Excerpt: ...r purposes of settlement. Plaintiffs also seek court approval of claims raised under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Labor Code §§ 2698 et seq.). The Court has concerns regarding the Settlement Agreement and is tentatively inclined to deny the motion if the Settlement Agreement and class notice are not modified. To afford the parties an opportunity to remedy these deficiencies, Plaintiff's motion for conditional c...

Excerpt: ...of California ("UC") demurs to the Third Amended Complaint. It demurs on its own behalf alone and not on behalf of the individual instructors named in the Complaint, because UC is immune from liability as a public entity and because the activities alleged in the TAC are, as a matter of law, not outrageous. For the reasons stated below, UC's demurrer to the TAC is SUSTAINED WITHOUT LEAVE TO AMEND. LEGAL STANDARDS The standard for construing a comp...

Excerpt: ...and. Plaintiff filed his original Complaint on August 29, 2018. Plaintiff filed his First Amended Complaint on March 28, 2019. The Court had granted Defendant's Motion for Judgment on the Pleadings on March 27, 2019. Plaintiff asserts a negligence claim and a premises liability claim against Defendant. Plaintiff alleges in the First Amended Complaint that he sustained personal injury and emotional distress as a result of taking the Holy Sacrament...

Excerpt: ...plaint that Defendant breached the terms of the lease by failing to restore the premises to its original condition. Plaintiff filed its Complaint on August 7, 2017. Defendant Seagate filed a First Amended Cross-Complaint asserting damages that allegedly resulted from Plaintiff's failure to approve the specifications of Defendant's installation of a new roof or roofs. The Court set the trial date on June 11, 2018. Defendant's request for a trial c...

Excerpt: ...meda County Superior Court case no. RG16837943 (the "Quiet Title Case"), a suit that involved certain real property the parties generally refer to as "Chase Street." Specially, in this civil action, Plaintiffs alleges seven causes of action, as follows: (1) Adverse Possession, Prescriptive Easement, Implied Easement, Marginal Street Doctrine; (2) Violation of Subdivision Map Act; (3) Declaratory Relief; (4) Unfair Business Practices; (5) Conversi...

Excerpt: ... course and scope of their employment, would give rise to a claim against those employees for the tragic incident on July 22, 2018 if those employees were private persons. (See Government Code § 820.) A private person is normally not liable for failing to take affirmative steps to prevent an injury to another person. (See, e.g., Zelig v. City of Los Angeles (2002) 27 Cal.4th 1112, 1128-1129.) In addition, Plaintiffs have not alleged a reasonably...

Excerpt: ...via Bank, N.A. as Trustee (Bayview) ("Wachovia") and Cross-Defendant JPMorgan Chase Bank, N.A.'s ("Chase") (collectively, "Cross-Defendants") Demurrer to the Fourth Amended Cross- Complaint of Defendant John Clifton Elstead ("Elstead") is SUSTAINED WITH LEAVE TO AMEND IN PART AND OVERRULED IN PART. Elstead shall file an amended cross- complaint within 30 days of this Order. Cross-Defendants' Motion to Strike Portions of the Fourth Amended Cross C...

Excerpt: ...ation Building, 1221 Oak Street, Oakland in light of power outage preventing all parties from obtaining timely tentative ruling. The court's tentative ruling is as follows: Cross-Defendant American Security Insurance Company's ("ASIC") Demurrer to the Fourth Amended Cross-Complaint of Defendant John Clifton Elstead ("Elstead") is SUSTAINED WITH LEAVE TO AMEND IN PART AND OVERRULED IN PART. Elstead shall file an amended cross-complaint within 30 d...

Excerpt: ...istributes and imports Chrysler, Dodge and Jeep vehicles in California. Plaintiff alleged that the vehicle had a 3-year/36,000-mile basic warranty, and a 5- year/100,000-mile powertrain warranty. Plaintiff alleges that also purchased a Mopar Vehicle Protection Warranty from FCS that provided for a rental vehicle if warranted repairs "take overnight." Plaintiff alleges that the vehicle also came with an implied warranty of merchantability. Plainti...

Excerpt: ... Tejon Real Estate, LLC v. Los Angeles (2014) 223 Cal.App.4th 149, 156 [holding that a demurrer is properly sustained where a plaintiff "fail[s] to adequately plead exhaustion of administrative remedies."].) Here, Plaintiff admits the administrative process is ongoing in his FAC. (See FAC, para. 88 [discussing the "pending administrative proceedings"].) Administrative exhaustion is jurisdictional. (Campbell v. Regents (2005) 35 Cal. 4th 311, 321....

Excerpt: ...its pleadings once without leave of the court. Plaintiffs previously amended their pleadings once without leave of court, so leave to amend was required before the Second Amended Complaint was filed. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 574.). However, the court has considered the new allegations in the proposed Second Amended Complaint in determining whether leave to amend should be granted. The demurrer to the First Cause of Action ...

Excerpt: ...legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.'" (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22, citing Wilkerson v. Sullivan, supra, 99 Cal.App.4th 443, 446.) Section 425.16 is interpreted to allow awards of only such fees as the court deems reasonable. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362; Dove Audio, Inc....

Excerpt: ...r 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 not owe a duty to the plaintiff or plaintiffs." (CCP § 437c(f)(1).) "A motion for summary adjudication sh...

Excerpt: ... of action alleges that within the last four years Defendant became indebted to Plaintiff on an open book account for money due, and count 2 of the second cause of action alleges that within the last four years Defendant became indebted to Plaintiff because an account was stated in writing between the parties in which it was agreed that Defendant was indebted to Plaintiff. (Complaint, para. CC-1(a)(1), (2).) In the instant motion, Plaintiff intro...

Excerpt: ... 2016. The operative pleading is the Fourth Amended Complaint ("FAC") filed on October 17, 2018. The FAC pleads three causes of action. Defendant is named only under the first cause of action for professional negligence and the second cause of action for wrongful death. The declaration of Thomas Hargrave, M.D. is sufficient to satisfy Defendant's initial burden of production. Dr. Hargrave's declaration establishes that Dr. Hyder met the applicabl...

Excerpt: ...opposition to this motion to compel its deposition. On October 17, 2019, Romesh Inc. did file a declaration in opposition to a separate pending motion to compel, but that declaration did not specifically address the deposition at issue here. (See Dec. C. Brose in Opp. to Motion to Compel Further Resp. to Doc. Prod., filed 10/17/2019 ["Dec. C. Brose"].) Accordingly, in the absence of any information to the contrary, the Court presumes Romesh Inc.'...

Excerpt: ... the required discovery responses and documents by November 22, 2019, or the responses are incomplete or otherwise defective, the court will impose evidentiary sanctions, the scope of which will be determined at a compliance hearing on December 13, 2019 at 9:00 a.m. in Department 18. At which time the court also consider the plaintiff's request for monetary sanctions. The trial and pretrial dates will be continued to March 30 2020 and March 10, 2...

Excerpt: ...endant's counsel 38.8 megabytes of digital images containing over 148 files of business records responsive to the request for production of documents at issue in this motion. (See Dec. C. Brose in Opp. to Motion to Compel Further Resp. to Doc. Prod., filed 10/17/2019 ["Dec. C. Brose"], para. 1, Exh. C.) This production was verified and was in addition to 1,100 pages of documents earlier served in this action. (Id. at para. 6.) Puzzlingly, Defenda...

Excerpt: ...ed. Plaintiff HealthFlex Home Health Services ("Plaintiff") alleges that Defendant falsely advertises that it is accredited by the ACHC, when in fact its accreditation has been terminated for failure to meet Medicare requirements. Plaintiff alleges that Defendant has gained an unfair competitive advantage by failing to hire a Director of Patient Care Services, in order to lower its expenses, which has resulted in risk to patients from the lack of...

Excerpt: ...Plaintiff because he complained about the presence of asbestos in cabins at City's Echo Lake camp. Plaintiff alleges that he was a protected whistleblower under the Fair Employment and Housing Act, Labor Code section 1102.5 et seq., and Government Code section 8547.1, et seq. Although Plaintiff alleges that City's conduct violated statutes that protect whistleblowers, and he has included in the First Amended Complaint separate causes of action al...

Excerpt: ...ht to trial within five years after the action is commenced against the defendant. ( CCP 583.310) TThe purpose of the rule requiring that plaintiffs act diligently to bring actions to trial within five years is to promote the trial of cases before evidence is lost or destroyed, or the memory of witnesses becomes dimmed, and to protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite...

Excerpt: ...g, and that date must be considered firm until continued. (Cal. R. Ct. 3.1332(a).) Because the Court had granted trial preference, the Court has discretion to continue the trial date by up to 15 days on showing of good cause. (CCP § 36(f).) The moving defendants seek a continuance on the grounds of "excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts" and because of "significant, unanti...

Excerpt: ....) The demurrer to "Count Three - Dangerous Condition of Public Property" (paragraph Prem.L-4) is OVERRULED. Plaintiff adequately alleges facts supporting a claim that the intersection where the accident occurred constituted a dangerous condition of public property, i.e., a physical characteristic of the intersection created a substantial risk of injury to those traveling through the intersection, even when exercising due care and acting in a rea...

Excerpt: ...inal Case"). Specially, in this civil action, Plaintiff alleges Defendant's prosecutorial conduct in the Criminal Case has violated Plaintiff's rights to discovery, a fair trial, due process, and a constitutional right to a speedy trial. Defendant now seeks to strike Plaintiff's Complaint as a strategic lawsuit against public participation ("SLAPP"). "A cause of action against a person arising from any act of that person in furtherance of the per...

Excerpt: ...Port Oakland, LLC, from whom PCC apparently intends to seek discovery, preclude it from participating in a trial on Plaintiff's sole claim of unfair business practices, or that the parties' discovery disputes have deprived it of a "reasonable opportunity" to conduct discovery germane to Plaintiff's UCL claim. In any event, the court finds that alternative means exist to adequately address the issue that gave rise to this motion for continuance. (...

Excerpt: ...ly and concisely all material facts that the moving party contends are undisputed." Similarly, Cal. Rule of Court 3.1350(d)(2) limits the separate statement to "only material facts and not any facts that are not pertinent to the disposition of the motion." Plaintiff did not file a responsive separate statement, but instead objects to the defendants' separate statement on the ground that it is not limited to material facts, and undermines the obje...

Excerpt: ...t DODG Corporation ("DODG"), the landlord of Defendant FastTrack Airport Parking, Inc. ("FastTrack Inc."), is liable for Plaintiffs' injuries caused by FastTrack Inc., because the single enterprise/alter ego doctrine dictates that the limited liability protections that usually insulate separate corporations from liability for the other corporation's debts do not apply under the circumstances of the case. DODG now moves for summary judgment as to ...

Excerpt: ...adjudication set to be heard on October 30, 2019. In support of their motion, Plaintiffs have submitted a number of items designated as confidential under the protective order, including stock certificates, financial payments, and other sensitive corporate and business information. Defendants now move the Court, pursuant to California Rules of Court, Rule 2.551, for an order sealing Plaintiffs' motion for summary adjudication based on the confide...

Excerpt: ...f's vehicle is referred to in the First Amended Complaint as "the Subject Vehicle." Plaintiff also makes allegations regarding so-called "Class Vehicles" in the First Amended Complaint. The Court could not find a special definition for that term in the First Amended Complaint. Plaintiff identified a total of 51 alleged defects with his vehicle in paragraph 8 of the First Amended Complaint. The majority of the defects concern defects with Kia's GD...

Excerpt: ...e 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. 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." Here, on October 2, 2019, Plaintiff elected to file and serve a First Amended Complaint ("FAC") rather than oppose Defendant's pending Demu...

Excerpt: ...ndant's current responses to Form Interrogatory 17.1 to be incomplete (and possibly evasive) in that they are not responsive to the interrogatory and the requests for admissions that were actually posed. The interrogatory and corresponding requests for admission ask Defendant to state all facts regarding whether pilot salaries and pilot benefits had been invoiced "at cost" or "marked up." Defendant's responses merely reference certain sections of...

Excerpt: ... to determine the order of proof in the interests of judicial economy." (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.) "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial . . . of any . . . issues . . . ." (CCP sec. 1048(b).) The "court may, when the convenience of witnesses, the ends of justice, or the economy and ef...

Excerpt: ...l interest in the action as a 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...

Excerpt: ...r 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 to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defen...

Excerpt: ...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 to any cause of action, that there ...

Excerpt: ...tion, 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 not owe a duty to the plaintiff or plaintiffs...

Excerpt: ...n his motion, Plaintiff seeks a protective order under section 2025. 420, arguing he himself is not competent to testify, due to the injuries he suffered in the incident that is the subject of this lawsuit. Therefore, Plaintiff argues, the Court should issue an order preventing or limiting the other parties' ability to depose him. Evidence Code section 701(a) provides that "[a] person is disqualified to be a witness if he or she is: (1) Incapable...

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

Excerpt: ...ed the meal and rest break claim. There are approximately 153 members of the class. (La Dec., para 5.) The case preliminarily settled for a total of $320,000. The settlement agreement states there will be attorneys' fees of up to $106,666.67, costs of up to $10,000, a service award of $7,500 for each class representative, settlement administration costs of $14,000. After these expenses, the class would get $174,333.33. This is an average of $1,14...

Excerpt: ...s motion. (See Code of Civil Procedure section 439(a)(4).) Plaintiffs' motion is GRANTED, WITH LEAVE TO AMEND for Defendant to allege facts in support of its First, Second, Fourth, Fifth, Seventh, Eighth, and Tenth Affirmative Defenses. Defendant's statement at page 6:3-8 of its opposition brief that it has alleged various facts in support of these defenses is incorrect. Defendant has argued in its opposition brief that either Plaintiffs or other...

Excerpt: ...e in support of their "renewed" motion the form of a supplemental declaration of Gina Sims, which they allege clarifies the ambiguity that court relied upon when denying the prior motion to compel. Plaintiff is required to present evidence that reconsideration should be granted due to the existence of new or different facts, circumstances or law. See CCP § 1008(a). A motion for reconsideration under C.C.P. § 1008(a) requires the moving party, a...

Excerpt: ... (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.) "There is a triable issue of material fact...

Excerpt: ...tion of the claims under PRC 4283(d) for charging customers with EBT cards and WIC vouchers for bags is reasonable. The case preliminarily settled for a total of $117.55. The settlement agreement states there will be attorneys' fees and cost of up to $85,000, a service award of $2,500 for the class representative. After these expenses, the class would get $30,000. The settlement was mediated with the assistance of Bonnie Sabraw. The court gives "...

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

Excerpt: ...interest to all five plaintiffs. Pursuant to Labor Code section 1194, Plaintiffs request a total of $70,890 in reasonable fees and $2,319.25 in costs. The court may properly award fees to employees pursuant to Labor Code section 1194 in a Labor Commissioner appeal brought by the employees pursuant to section 98.2. (Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363, 1379-1394.) Plaintiffs request fees for a total of 148.8 h...

Excerpt: ...Estate Solutions, LLC are engaged in the business of acquiring properties and then selling them after performing some improvements and remedial work. Defendants Laura Blair and Carlos Plazola are the principals of Defendants. Plaintiff alleges in the Second Amended Complaint that the entity Defendants are all previous owners of the subject property located at 3000 Sheffield Avenue, in Oakland. Plaintiff and Defendants closed on the transaction ($...

Excerpt: ...ing from the original date due to the absence of evidence presented by the parties. See City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1264-1265 (court must have some evidence to support its decision on a motion for determination of good faith settlement). The Court appreciates the supplemental memoranda filed by Defendants Gerlyn Neau and George Neau and the County of Alameda. The parties' supplemental papers attached the re...

Excerpt: ...ion for Intentional Infliction of Emotional Distress. Plaintiff alleges facts supporting this claim that, if true, demonstrate that BMC engaged in extreme and outrageous conduct. That conduct includes, inter alia, billing Plaintiff for services never authorized by her or performed by BMC, attempting to seize Plaintiff's boat via a mechanic's lien for services never authorized or performed, and damaging the boat in an amount exceeding $35,000 whil...

Excerpt: ... Complaint filed on August 28, 2019. Plaintiff purchased her property in the Oakland hills in 2015. Defendant Yu purchased the property known commonly as 80 Roble Road and 90 Roble Road in December 2015 or January 2016. The parties have not indicated that any structures existed on the Yu property at the time that he acquired it. Defendant Yu and his business partner Balbir Singh intend to construct single-family homes on the property for sale. Pl...

Excerpt: ... Act, Penal Code sections 11225 et seq. (See Plaintiffs' Separate Statement Facts ("SSF") Nos. 25-78.) However, the Court cannot grant summary adjudication as to liability only, where issues pertaining the calculation of damages or the other relief or remedies as to which Plaintiffs may be entitled remain to be determined. (See, e.g., Department of Industrial Relations v. UI Video Stores Inc. (1997) 55 Cal.App.4th 1084, 1097.) In Plaintiffs' Seco...

Excerpt: ...ct with Johnson or performing work under that contract. Johnson contends that, although failure to comply with § 413 does not make the parties' contract "illegal" it does make the contract unenforceable. Johnson cites no language in § 413, and no published case, that supports her position, although she does cite a 19 year old case filed in San Diego Superior Court in which a judge reached that conclusion. In the absence of any directly applicab...

Excerpt: ...ction 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $2,500.00 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health and Safety Code section 25249.7(b); and (E) and the allocation of any additional settlement payments to Plaintiff is in the public interest as set forth in Code of Regulations, title 1...

Excerpt: ...agree that you will resolve all matters in dispute between you and TWG by binding arbitration, under the JAMS Employment Rules, then in effect, which are available at www.jamsadr.com or from Human Resources upon request." The claims that Plaintiff agreed to arbitrate included, but were not limited to, "violations of federal, state or local laws." Plaintiff's claims against Defendant in this action are matters in dispute between them, arising dire...

Excerpt: ...calculation of the purchase price of Makenzie Kelly's shares of North Star Emergency Services, Inc., in 2018, including, but not limited to, all electronically stored information." Stegner & Associates produced over two hundred pages of documents in response to the subpoena, but did not produce all documents responsive to the request mentioned above, instead objecting, citing grounds of attorney-client privilege and attorney work product protecti...

Excerpt: ...tion relating to privilege) and otherwise respond fully, including producing responsive documents, as necessary, within 15 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 the request for monetary sanctions, when a motion to compel discovery is granted, a court shall order the party to whom discovery was directed to pay the reasonable expens...

Excerpt: ... the ongoing Cal-OSHA investigation into decedent's accident, and the stated intent of various percipient witnesses (including Donaciano Caswell, guardian ad litem for minor Plaintiffs Santiago Torres-Alvarez and Sebastian Torres-Alvarez) to assert the Fifth Amendment right against self-incrimination and refuse to testify about the accident. The interests of justice also require staying this action because Doanciano Caswell, the guardian ad litem...