Excerpt: ... Complaint is currently pled, Plaintiff alleges both that Pettner was acting in the course and scope of his employment for Sutter (see Second Amended Complaint, paragraphs 6 and 28) and that he was not acting in the course and scope of employment (see Second Amended Complaint, paragraphs 17 and 29.) Those directly contradictory allegations make the First Cause of Action (and indeed, the entire Second Amended Complaint) uncertain and ambiguous. In...

Excerpt: ... received notifications from the City of Oakland to repair the premises but failed to do so. (See Complaint paragraphs 38-42.) Those allegations, if true, adequately support these causes of action. The demurrer to the Fifth Cause of Action for Breach of Contract is SUSTAINED, WITH LEAVE TO AMEND to attach Plaintiff's written lease as an exhibit to the Complaint or to allege the term(s) of the lease that Defendants breached. In the absence of such...

Excerpt: ...Investigation Report dated March 2, 2018, including the approximate 30,000 emails, near verbatim transcripts/notes of witness interviews invoices and a spreadsheet listing people who had access to the applicable facility, among other documents, no later than August 31, 2021, in order to provide a further opportunity for this defendant to eliminate the prejudice caused by this spoliation of evidence. Additionally, the court hereby sets an ORDER TO...

Excerpt: ...ng party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the final or...

Excerpt: ... Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff also did not clearly indicate whether it claims Defendants are liable for intentional misrepresentation, negligent misrepresentation, or concealment of material fact. If Plaintiff intends to base its claim on the false testimony of Defendants Eric and Jerry Tran during the depositions that were taken after the settlement agreement was executed in 2018, it must all...

Excerpt: ...her, that Exhibit C to that declaration may have been forged by defendant Ozluk in order to increase his apparent capital contribution to the LLC. The court lacks sufficient information and evidence (for example, a sworn declaration or deposition testimony by the purported author of the document) to conclude the document is a forgery. Accordingly, Plaintiff's motion for an order finding defendant Ozluk in contempt is denied, without prejudice. Pl...

Excerpt: ...ant Timothy Low, whose claims appear to be barred by the Government Tort Claims Act. The causes of action related to Mr. Low do not demonstrate either a special relationship, or a mandatory duty to disclose, either by statute or in common law. The claims are similar to Plaintiff's unsuccessful request for adjudication of its claims based on a failure to disclose raised in Plaintiff for Motion for Summary Adjudication, which this court denied. (Va...

Excerpt: ...Rey (2014) 223 Cal.App.4th 221, 236.) Defendants shall file and serve an Answer to the Complaint no later than Friday, August 6, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, July 16, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jean...

Excerpt: ...ocedure section 128.5. In their briefing on the motion for judgment on the pleadings, neither side was able to cite a published case squarely on point as to whether a product that did not itself contain a chemical regulated by Proposition 65, but that could foreseeably be used with a substance containing such a chemical, was subject to Proposition 65. In the absence of any such directly applicable legal authority, the Court does not find that Pla...

Excerpt: ...ions under 21 CFR § 898.12 and whether Defendants subjected Plaintiff to an adverse employment action because he raised these concerns. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, July 27, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue J...

Excerpt: ...aims are stayed pending resolution of his individual wage and hour claims. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, July 20, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested...

Excerpt: ...whether Defendant's alleged violations of the Song-Beverly Consumer Warranty Act, Civ. Code § 1790 et seq., (the "Lemon Law") were "willful." ANALYSIS OF MOTION The Court GRANTS the MTC with respect to RFPD No. 7 but limits the request for "Warranty Policy and Procedure Manuals" to the time period from 1/1/2018 to 6/25/2020, the last date on which Plaintiff sought warranty repair work. (See Moving Gi Dec. ¶ 19.) The Court GRANTS the MTC with re...

Excerpt: ...;" and (2) "the information to be gained from the deposition is not available through any other source." (Contractor's State Licence Board v. Sup. Ct. (2018) 23 Cal.App.5th 125, 132 ("CSLB"); see also Board of Dental Examiners v. Sup.Ct. (1976) 55 Cal.App.3d 811; People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804, 826-827.) Plaintiff has failed to submit sufficient competent evidence to meet his burden. The Court ORDERS Plaintiff to pay Def...

Excerpt: ...ntiff's successor in interest within the meaning of CCP § 377.11. Further, causes of action sounding in wrongful death survive the death of the original decedent's successor in interest. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1444.) This tentative ruling will automatically become the Court's final order on Tuesday, July 27, 2021 unless, by no later than 4:00 p.m. on Monday, July 26, 2021 a party to the action notifies both (1) the Cour...

Excerpt: ...tion on the ground that it was filed well after the initial 60-days after the initial cross-complaint was served. Cross-Complainant argues that the First Amended Cross-Complaint filed on April 22, 2021, did not contain new causes of action and is sufficiently similar to the original cross-complaint filed on Mary 21, 2018 so that the court should consider the anti-SLAPP motion as untimely. The court agrees. Typically, an anti-SLAPP motion must be ...

Excerpt: ...September 25, 2019. See Labor Code § 2699. Plaintiff alleges in the Complaint that Defendant engages in the following practices that violate the Labor Code: (1) Defendant fails to authorize and permit its non-exempt security officers to take meal and rest breaks; (2) Defendant fails to pay its non-exempt security officers at a premium rate for working through their meal and rest breaks; (3) Defendant fails to provide its non-exempt security offi...

Excerpt: ... matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) For the Court to grant leave to amend after sus...

Excerpt: ...sentation. The Court, therefore, concludes that further leave to amend will be futile. The Court OVERRULES the Demurrer to the TAC's Second Cause of Action for Declaratory Relief. The Green Defendants' contention that no present controversy exists between Plaintiff and the Green Defendants has no merit. The parties each have a conflicting judgment in their respective favors, and each side contends that the other party's judgment was procured by f...

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

Excerpt: ...s v. Sup.Ct. (1998) 66 Cal.App.4th 1217. Based on the record before the Court, the present facts appear most similar to those of Wellpoint Health Networks. Nevertheless, the Court is reticent to order the production of documents that may, in fact, be protected from disclosure by attorney-client privilege. VDM's privilege log fails to contain sufficient factual information to allow Plaintiff to evaluate the merits of VDM's claims of attorney-clien...

Excerpt: ...two of the four causes of action in WM's First Amended Complaint. The Court rejects EMBUD's argument that the discovery at issue is either burdensome or oppressive. A party seeking relief from discovery based on burden must submit evidence showing the quantum of work required to respond to the discovery, and a party seeking relief based on oppression must show an intent to create an unreasonable burden or that the effect of the burden is incommen...

Excerpt: ...ile an administrative charge with the DFEH alleging any harassment by Leung, as required by Government Code § 12960. (See Medix Ambulance Service Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 115-118.) Although Plaintiff's DFEH charge did mention Leung by name, it neither alleged that Leung was her employer, nor that Leung had harassed her, nor that Leung was the perpetrator of the harm suffered by Plaintiff. Therefore, Plaintiff's DFEH char...

Excerpt: ...ing that is the subject of this lawsuit, video surveillance of the events leading up to and including the shooting, and police interviews with eyewitnesses including Defendants' employees.) It is fairly clear why those documents and recordings - if they all actually exist - would contain facts necessary for Plaintiff to oppose this motion. The Court's discretion in whether to grant a continuance should usually be exercised in favor of granting th...

Excerpt: ...ust email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. If not timely contested, and the tentative ruling will become the final order of the Court. Mr. Richards was a pipe-fitter for more than thirty years. During that time, he worked with many different asbestos-containing products. He now suffers from pleural mesothelioma. Plaintiffs name more than 100 different...

Excerpt: ...ges that on October 18, 2016, she was followed to her home in Fremont by a former employee of Defendant, Barry Heisner, and attacked and robbed as she attempted to enter her home. Plaintiff had been playing cards at Bay 101 for several hours before leaving the casino at around 1:00 a.m. Defendant Heisner, who had been terminated as a card dealer in March 2016 for unrelated job performance reasons, was prohibited from entering the premises after D...

Excerpt: ... medical marijuana ID card at the time of the collision. (See SROG Nos. 60-67). Plaintiff also seeks to discover the identity of healthcare providers who may have prescribed Plaintiff medical marijuana within the last ten years. (SROG Nos. 68-70.) Defendant is in possession a one-page medical record dated March 16, 2020 in which Plaintiff's medical provider noted in the "Social History" section of the document that Plaintiff was a "daily smoker [...

Excerpt: ...s so "frivolous" as to warrant the imposition of sanctions under Code of Civil Procedure section 128.5. As the Court indicated in its May 31, 2021 order, Plaintiff may potentially have claims against the Banks based on the 2014 settlement of one of his six prior cases against the Banks, but those claims were not alleged in his First Amended Complaint in this case and should be brought, if at all, in the action in which the settlement was reached....

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

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

Excerpt: ...urth Floor), 1221 Oak Street Oakland. Plaintiff's counsel provide an estimate of 566.3 hours of work on this case, which seems unusually high for a relatively straightforward PAGA action, supported only by declarations conclusorily alleging that these hours were reasonably and efficiently incurred. Although hourly billing entries are not generally required in the context of a settlement motion, the Court is unwilling to approve an attorney fee aw...

Excerpt: ...ming arguendo that Puls' written lease contains such a provision, Plaintiffs allege that Manley occupied the subject premises beginning in 2014 with the knowledge and consent of the premises' prior owners. (See First Amended Complaint, paragraphs 2 and 38.) If true, those allegations may support a waiver of any alleged requirement of the prior premise owner to approve Manley's tenancy in writing. (See, e.g., Wind Dancer Production Group v. Walt D...

Excerpt: ... L-2", this claim fails as a matter of law because the City is not liable for common law negligence. (See Government Code § 815(a).) As to "Count 2 - Willful Failure to Warn" in "Prem. L- 3", this claim fails because Plaintiff does not allege or present any evidence demonstrating that she was using the subject premises for recreational purposes, as required for liability under Civil Code § 846. As to "Count Three - Dangerous Condition of Public...

Excerpt: ...any time prior to trial. See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108. Cross-Defendant's motion is not an untimely and defective motion for reconsideration of the Court's ruling of May 27, 2020. The Court specifically granted Cross-Defendant leave to make the request when it denied its earlier motion. Based on its review of the parties' written submissions, the Court declines to grant Cross-Defendant leave to proceed with its second motio...

Excerpt: ... 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." (C...

Excerpt: ...t (1998) 67 Cal.App.4th 1253, 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 ...

Excerpt: ...tion on the ground that it was filed well after the initial 60-days after the initial cross-complaint was served. Cross-Complainant argues that the First Amended Cross-Complaint filed on April 22, 2021, did not contain new causes of action and is sufficiently similar to the original cross-complaint filed on Mary 21, 2018 so that the court should consider the anti-SLAPP motion as untimely. The court agrees. Typically, an anti-SLAPP motion must be ...

Excerpt: ...oner argues that he did not refuse to complete a chemical breath test; instead, he was simply "unable" to complete it. For the purposes of this writ, that distinction makes no difference. Vehicle Code section 13353(a) provides for a one year license suspension for any driver who either refuses to submit to a chemical test or who "fails to complete" it. It is undisputed that Petitioner failed to complete the breath test. (See Garcia v. Department ...

Excerpt: ... no later than 4:00 p.m. on Monday, July 12, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, July 14, 2021 at 1:30 p.m. or at a subsequent date ...

Excerpt: ... 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 if, and only if, the evidence would allow a reasonable trier of fact to find the underlying...

Excerpt: ...causes cancer or reproductive toxicity or that they necessarily emanate any such chemicals. Rather, Plaintiff alleges that Defendant's products, if used with marijuana, produce marijuana smoke, which is a carcinogen regulated by Proposition 65. Plaintiff does not allege that the Defendant's products can only be used with marijuana, or that their use with other substances emanates any carcinogen subject to Proposition 65. Plaintiff cites no case h...

Excerpt: ..., the amount of $15,590. Nevertheless, Dimco still fails to establish that the total amount that it potentially owes to the other claimant parties in this lawsuit is only $56,650. Instead, each of cross- complainants Flock Freight Inc. ("Flock"), Choptank Transport, Inc. ("Choptank") and Mode Transportation LLC ("Mode") appear to have separate and distinct claims for money damages against Dimco for unpaid shipping services each of Flock, Choptank...

Excerpt: ...hem. (See Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236.) Defendants shall file and serve an Answer to the Complaint no later than Friday, August 6, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, July 20, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing w...

Excerpt: ...ood faith has the effect of discharging the settling defendants' obligations to any remaining defendants in contribution or equitable indemnity. (See CCP § 877.6(a), (c).) The burden of proof lies with the party asserting that the settlement is not in good faith. (CCP § 877.6(d).) A settlement is in "good faith" if it is within the "reasonable range"-that is, "within the ballpark"-of the settling tortfeasor's share of liability for the plaintif...

Excerpt: ... Plaintiff-in- Intervention Chubb filed a notice of lien related to is worker's compensation policy for amounts paid related to the same accident. On March 17, 2020, Defendants settled their claims with Plaintiff Hammond, which included a negligence cause of action. Defendants now demurrer to the First Amended Complaint-in-Invention on the grounds that since the negligence cause of action has been dismissed from the Complaint-in-Intervention, tha...

Excerpt: ...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 allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which ju...

Excerpt: ...emedies Act (CLRA) (Civ. Code, § 1750 et seq.). In particular, Plaintiff's Third Amended Complaint ("TAC") alleges that the label for Rite Aid's "Infants' Fever Reducer & Pain Reliever" ("Infants' Product") is designed to create a false impression that the higher-priced Infants' Product is specially formulated for infants and pharmacologically distinct from Rite Aid's "Children's Fever Reducer & Pain Reliever" ("Children's Product"), when in fac...

Excerpt: ...intiff) and Neutron. The Court further ORDERS the present action STAYED pending completion of arbitration proceedings. This tentative ruling will automatically become the Court's final order on Tuesday, July 20, 2021 unless, by no later than 4:00 p.m. on Monday, July 19, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is co...

Excerpt: ... cleared. Mr. Beltran, offered to have Santiago Hernandez assist with trimming trees because had experience trimming trees and tools, and Mr. Tuomey agreed. (AR:0131-0132.) On May 21, 2016, Santiago Hernandez was seriously injured while working to remove the trees. (Administrative Record Pages ("AR"): 118:7-119:14; 131:21-132:4.) Mr. Hernandez was not licensed by the California Contractors State Licensing Board as a tree trimmer and Mr. Tuomey wa...

Excerpt: .... 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 which they have not agreed to ...

Excerpt: ...ll documents related to the company's preparation of its proposal to the City for the Residential Recycling ("RR") contract in 2015. The parties advise that the City began the process of soliciting proposals from companies interested in providing recycling and waste collection services in 2012. The objection of CWS that the request is overbroad and seeks information that is not relevant to the subject matter of this action is overruled. The infor...

Excerpt: ...4.) "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 which they have not agreed to arbitrate and which no statute has made arbitra...

Excerpt: ...utter Guide: Civil Procedure Before Trial at § 9:38, citing CCP § 1010; CRC Rule 3.1110(a) and People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726.) Defendant's Notice of Motion fails this basic prerequisite of Motion Practice. The Notice states that pursuant to CCP § 128, Defendant is seeking an order "limiting the class scope within Plantiff's First Amended Complaint." The Notice nowhere states how exactly the class scope should ...

Excerpt: ...stitute a cause of action upon which relief may be based. (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....

Excerpt: ... than 4:00 PM on Friday, July 16, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted on Monday July 19, 2021 at 3 p.m. using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court provide appropriate invitaitons. If not timely contested, and the tentative ruling will beco...

Excerpt: ...Rey (2014) 223 Cal.App.4th 221, 236.) Defendants shall file and serve an Answer to the Complaint no later than Friday, August 6, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, July 16, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jean...

Excerpt: ...n ("Decedent") while at work at the Department of Industrial Relations, Division of Worker's Compensation. The complaint alleges that the decedent's suspicious death was related to the work she performed for her employer, the California Department of Industrial Relations. (Complaint at ¶10-23, 28-37.) Defendants' demurrer to the Complaint on the grounds that the workers compensation system provides Plaintiff with the exclusive remedy for recover...

Excerpt: ...stitute a cause of action upon which relief may be based. (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....

Excerpt: ...two of the four causes of action in WM's First Amended Complaint. The Court rejects EMBUD's argument that the discovery at issue is either burdensome or oppressive. A party seeking relief from discovery based on burden must submit evidence showing the quantum of work required to respond to the discovery, and a party seeking relief based on oppression must show an intent to create an unreasonable burden or that the effect of the burden is incommen...

Excerpt: ...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." (CCP § 437c(f)(1).) "A motion for summary a...

Excerpt: ...RDS FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (20...

Excerpt: ...rding whether Richard O'Farrell ("Mr. O'Farrell") was exposed to Defendant's asbestos-containing joint compound in 1976. If any party wishes to contest the tentative ruling, no later than 4:00 PM ONE on Thursday, July 15, 2021, contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. If a hearing is requested, the hearing will be conducted via Co...

Excerpt: ... Longhigh also paid Kontech $90,000.00 for shares of Kontech's common stock to become a 40% shareholder of Kontech. In a December 2016 shareholder meeting, Kontech proposed that the loan be converted into new shares of Kontech. Plaintiff claims to have rejected that proposal. Longhigh claims that it later discovered Kontech cancelled the debt owed on the loan without Longhigh's knowledge or consent. When Longhigh made demands for repayment of the...

Excerpt: ...n Defendants' memorandum of points and authorities and the declarations of Gina Teafatiller, James Bittick, and Lawrence Joseph. The Court has no record that Defendants filed a declaration by James Bittick in support of this motion on August 24, 2020 or thereafter, and Defendants have never provided provide Department 520 with a courtesy copy of Bittick's declaration (or indeed any of their other moving papers filed August 24, 2020, as required b...

Excerpt: ...dication 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 defendants either o...

Excerpt: ...r and to steal her properties. Defendants naturally deny all of Plaintiff's claims. Defendants assert that Plaintiff's properties were sold at foreclosure because she defaulted on her loan payments. Defendant has met his burden of establishing that the bank records that Plaintiff sought to obtain through her service of the deposition subpoena to Provident Credit Union are protected by his constitutional right of privacy. See Fortunato v. Superior...

Excerpt: ... Mohammed Ahmad. The operative Complaint is the Second Amended Complaint filed on March 8, 2018. The Court made rulings on two demurrers filed by Defendant to the First Amended Complaint and Second Amended Complaint. Plaintiff's daughter, 19-year-old Rusamie "Ashly" Phong Phoumy ("Ashly") was killed with a knife by Defendant's half-brother, Abdol Ali Omar, on the morning of November 30, 2014, at Defendant's business, Oakland Market. Plaintiffs as...

Excerpt: ...jections to the Glickstein declaration are OVERRULED. At deposition, Glickstein stated he did not recall the events relevant to this case. PX 2, pp 33-34, 54.) In his declaration, Glickstein states he recalls the events relevant to this case. "It is well-established that "a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses. ... Where a declaration submitted in opposition to a motion for summary ...

Excerpt: ...HOUT LEAVE TO AMEND. Petitioner challenges the City of Oakland's issuance of Certificates of Compliance for Alameda County Assessor Parcel Nos. 019-0102-004-00, 024-0697-007-15, 025- 0701-011-00 and 025-0707-014-02 ("Subject Parcels"). The Certificates were issued during the time that the parcels were the property of the Chapter 11 Bankruptcy Estate. Petitioner alleges in the petition that he is a resident of the County of Alameda and "was also a...

Excerpt: ... Complaint's Declaratory Relief Cause of Action. After hearing on 2/24/2021, the Court entered an Order on 4/19/2021 granting Defendant's MSA as to the other Causes of Action but requesting further briefing on the Declaratory Relief Cause of Action. (See 4/19/2021 Order at 28:9-33:3.) The Court incorporates by reference the 4/19/2021 Order, which contains a detailed statement of stipulated facts and related rulings regarding the Complaint's other...

Excerpt: ...58 are related and the latter two cases shall be reassigned to Department 514. Christopher L. Nida's motion to intervene in Case Nos. RG20- 007626 is denied but the court would entertain a motion or stipulation to consolidate the actions arising from the October 14, 2018 accident. C.C.P. section 377.60(b) allows the parent of a decedent to sue for wrongful death if the parent was dependent on the decedent and regardless of whether the decedent ha...

Excerpt: ... Further, Plaintiffs submits evidence that the Settlement Agreement and the Class Notice have been revised as requested by the Court IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, July 13, 2021 contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Ne...

Excerpt: ...nters. The Court further ORDERS to the parties to communicate with the Clerk of Dept. 19 as part of the meet and confer process to find dates on which the Judge deposition may be conducted in Dept. 19's jury room so that the Court may rule on objections. The Court advises the parties to agree upon multiple dates in order to ensure the availability of Dept. 19's jury room on one of them. Dept. 19's jury room is typically available at and after 2:0...

Excerpt: ...e. An earlier trial date had been vacated due to the partial closure of the Alameda County Superior Court due to the Covid-19 state of emergency. Plaintiff alleges in the underlying case that individuals that she trusted to help her run her law office defrauded her over the course of years and destroyed her practice. Plaintiff alleges in this action that attorney Jacobson failed to represent her competently in the underlying case and also billed ...

Excerpt: ...ol during school hours. Plaintiff alleges that Defendant improperly called the police and reported that Plaintiff would not leave the Elementary school campus. (Complaint at 18-23) Plaintiff was arrested for violation of a court order by the police, off campus. Defendant then later sent an email to other individuals at the Livermore Valley Joint Unified School District stating that Plaintiff had broken a court order and was asked to leave "multip...

Excerpt: ...presented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, July 14, 2021 at 1:30 p.m. or at a subsequent date and time set by the Clerk of Dept. 514. The subject line of the email to the Court contesting the tentative ruling must list the case name and number, and the email must identify the r...

Excerpt: ..." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) A party may move for summary adjudication to decide whether there is no merit to causes of action, affirmative defenses, or claims for damages, whether "one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs," or some combination thereof. (Code of Civil Procedure ["CCP"...

Excerpt: ...or Court Case No. RG17862495, by failing to install suitable seats at the front-end cash registers of its California stores. The FAC also alleges that Defendants' breaches of the Smiles agreement constitute subsequent violations of Wage Order 7-2001 § 14. Previously, Defendant filed a writ petition arguing that the Court abused its discretion by denying Defendant's peremptory challenge under Code of Civil Procedure section 170.6. Plaintiffs asse...

Excerpt: ...) 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, however improbable they may be," unless the "complaint contains allegations of fact inconsistent with attached documents, or alleg...

Excerpt: ... argues that the undisputed evidence shows that the delivery truck was not a proximate cause of the accident. EVIDENCE Plaintiff's objection #1 (police report) is SUSTAINED. It is not a business record. It is hearsay. Plaintiff's objection #2-10 (police officer testimony) is OVERRULED. The police officer was not qualified as an expert witness. The police officer can state his lay opinions. (Evid Code 800.) The police officer's conclusions based o...

Excerpt: ... the building manager before calling any of the contractors on the sheet. Stoneledge employee Mountain called the building manager and got no response. The emergency contact stated that tenants were to call Carson Madrona if they could not reach the building manager. Stoneledge employee Mountain did not try to call Carson Madrona. Stoneledge employee Mountain called Perez of DP Electric. DP Electric employee Perez tried to fix the electrical prob...

Excerpt: ... to Plaintiff. (Declaration of Peter Rehon at ¶ 6, Exhibit 1.) Defendant was to provide further verified responses no later than November 10, 2020. The court also previously granted Plaintiff's request for issue, evidentiary and monetary sanctions on March 3, 2021 and awarded monetary sanctions in the amount of $13,372.50 and to pay $1,500 in sanctions to the court. (Declaration of Peter Rehon at ¶¶ 3-17.) Plaintiff represents that no such res...

Excerpt: ... defendants' moving papers are true and correct copies of the documents executed between the parties. The court therefore grants judicial notice of the documents and considers the merits of arguments presented. The operative First Amended Complaint filed in the present case asserts five causes of action: 1) Declaratory Relief- Shareholders Agreement; 2) Breach of Contract- Employment Agreement; 3) Breach of Contract- legal Fees Obligation for Mar...

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

Excerpt: ...ry basis for maintaining its cause of action for the second cause of action for negligence or the third cause of action for breach of mandatory duty. Except as otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Cal. Gov't Code § 815(a).) Plaintiff must provide a statutory basis for his claim. (East...

Excerpt: .... LEGAL STANDARD A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (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...

Excerpt: ...in their declarations, points and authorities in opposition being stricken. In addition, the motion of Plaintiffs Sharif Sawires and Nina Birnbaum for entry of judgment pursuant to the terms of the parties' Stipulation to Settle, executed on January 12, 2021 and approved by the Court on February 17, 2021, pursuant to CCP § 664.6, is CONTINUED to September 10, 2021, at 2:00 p.m., in Department 520. The Court has reviewed the parties' voluminous s...

Excerpt: ...costs of up to $25,000, a service award of $5,000 for the class representative, a net PAGA payment of $18,750, and settlement administration costs of up to $6,000. After these expenses of approximately $154,750, the class would get $145,250. The average payout per class members would be $410. The proposed class notice form and procedure are adequate. There were no opt outs and no objections. (Kruckenberg Supp Dec.) The proposed class is appropria...

Excerpt: ...nsel must file the required declaration." Counsel must file a declaration with the required information or direct the court to a previously filed declaration with the required information. Assuming that counsel provides the CCP 382.4 information, then the order would be: The motion of plaintiffs for final approval of class action settlement is GRANTED. The motion of plaintiffs for approval of fees and costs and award is GRANTED. APPROVAL OF THE S...

Excerpt: .... "The general rule of motion practice ... is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) "A trial court has discretion to consider new evidence in reply papers supporting a summary judgment motion as long as the opposing party has notice and an opportunity to respond. ... Evidence which is used to fill gaps in the original evidence created by the opposition is particularly appro...

Excerpt: ...nt administration costs of up to $15,000, and a net PAGA payment of $37,500. After these expenses of approximately $435,833, the class would get $564,167. The average payout per class member would be $1,007. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analysis as required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116. The scop...

Excerpt: ...el for Plaintiff has provided a declaration in support of the motion that provides the information required by CCP 382.4 regarding the absence or presence of a relationship between counsel and the residual beneficiary. Counsel for Plaintiff had a prior employment relationship with Centro de la Raza and currently has a co- counsel relationship with Centro de la Raza. The payment of residual funds to Centro de la Raza creates an appearance of impro...

Excerpt: ...DENIED. The motion for summary judgment cannot be granted because Plaintiffs have not met their initial burden of making a prima facie showing that each element of the cause of action has been proved. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Although Plaintiffs have provided the Court with a large volume of evidence in the form of Defendant's responses to written discovery and pleadings and orders in the earlier filed Pro...

Excerpt: ...cretion finds that it would not be in the interests of justice to grant a preference in trial setting absent some evidentiary showing that there is substantial medical doubt of Mrs. Boccio's survival beyond six months or that her interests will be prejudiced if trial is not set to commence in 120 days. (See CCP § 36(d).) However, the Court would be inclined to set a non-preferential trial date in this action for a date prior to the end of 2021, ...

Excerpt: ... party Tami Mason, the daughter the decedents and the representative of their estate, has "specially appeared" for the purpose of seeking a dismissal. Mason claims the mechanic's lien recorded against the property is interfering with her ability to administer her parents' estate. (See Mason Decl. paras. 2-5.) Mason's motion is denied because Mason has not sought to intervene and lacks standing as a non-party. (Lohnes v. Astron Computer Products (...

Excerpt: ...he attorneys advise the Court that they were attempting to settle the case informally prior to November 17, 2020. After the Court ordered the parties to submit their claim to arbitration, the attorneys then spent months attempting to select an arbitrator. Plaintiff's attorney finally contacted JAMS on March 16, 2021 and commence the arbitration. On April 19, 2021, the parties advised JAMS that they had agreed to have the matter heard by retired f...

Excerpt: ...ion is one arising from a protected activity, i.e., an act in furtherance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether the opposing party has demonstrated a probability of prevailing on the claim. The opposing party demonstrates this by showing the challenged pleading is legally sufficient and supported by a suff...

Excerpt: ...s that the confidentiality clause is substantively unconscionable, citing Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1065-1067. However, the reason the Ramos court found the confidentiality clause contained in that arbitration agreement to be substantively unconscionable was that it prevented the plaintiff from gathering evidence to present her case. Here, by contrast, the confidentiality clause in Aerotek's arbitration agreement provide...

Excerpt: ...tals employee and defendant Emil Medina negligently unloaded the beam such that it struck the plaintiff who was standing nearby. Plaintiff propounded written discovery on defendant, including Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, on July 29, 2019. On September 10, 2019, defendant served unverified responses to the foregoing discovery with the notation "verifications to follow." On March 8, 2021, ...

Excerpt: ...e 17, 2021, Plaintiffs' counsel filed this motion seeking relief from the summary judgment order and the judgment pursuant to Code of Civil Procedure section 473(b). Plaintiffs' counsel asserts that on April 6, 2021, he began to experience severe flu symptoms that lasted for "several days", and as a result he was unable to check the Court's tentative ruling on Defendant's motion for summary judgment, contest the tentative ruling, or appear at the...

Excerpt: ...ablish that Plaintiff's discovery motions were granted due to their mistake, inadvertence, surprise, or excusable neglect. Plaintiff's attorney caused the subject requests for admission to be served on Defendants on September 25, 2020. The discovery was served directly on Defendants because their attorneys successfully moved to be relieved as their counsel days before. Defendants did not serve any responses by the due date of October 30, 2020, no...