Excerpt: ...l.App.2d 813, 817 ["the power of a court to stay proceedings ... was inherent at common law and is now vested in the superior courts of this state"].) (See also CCP 410.30(a).) ORDER FOR STAY Operating Engineers sued Caribou in a federal action. (Operating Engineers v. Caribou, ND Cal Case No. 13:8-cv-02086. Operating Engineers and Caribou entered into a stipulated judgment. The stipulated judgment at para 3 states that Padilla personally guarant...

Excerpt: ...ugh first noticed the deposition of Plaintiff for October 8, 2019, but took the deposition off calendar when Plaintiff failed to respond to written discovery. On September 30, 2020, McCullough served another deposition notice for October 27, 2020. On October 16, 2020, Plaintiff acting in pro per, canceled the deposition and stated she was unavailable. On November 16, 2020, McCullough served a third deposition notice for December 11, 2020, which w...

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

Excerpt: ...RT ASSUMES VENUE IS PROPER IN ALAMEDA Plaintiff's choice of venue is presumed to be correct. See Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666 ("The burden rests on the party seeking change of venue to defeat the plaintiff's presumptively correct choice of court. When the defendant is a corporation, it has the burden of negativing all the five possible bases of venue articulated in section 395.5."). Section 395.5 states: ...

Excerpt: ...elected the proper venue." (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) MOTION TO TRANSFER VENUE Plaintiff Jack Steen ("Plaintiff") brought this action against Defendant, asserting claims of general negligence and premises liability based on a March 2, 2019 incident wherein an automatic door at the entrance of a Safeway store in Napa, California, automatically closed on him, striking his right shoulder and causing him to fall on ...

Excerpt: ...nted MERS's motion to dismiss the claims seeking to cancel the deeds. In January 2013, Malfatti filed a second federal lawsuit involving the property, Malfatti v. Specialized Loan Servicing LLC., U.S. District Court-N.D. Cal., Case No. C13-00287), in which he sued SLS, MERS, and HSBC for wrongful foreclosure. Malfatti voluntarily dismissed the case without prejudice. In March 2016, Malfatti v. MERS, Alameda Case RG16-808857, Malfatti (represented...

Excerpt: ... the class representative, a net PAGA payment of $11,250, and settlement administration costs of up to $7,500. After these expenses of approximately $127,900, the class would get $147,083. There are 145 members of the class. The average payout per class members would be $1,014. 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 ...

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

Excerpt: ...greement states there will be attorneys' fees and cost of up to $900,000 (33%), costs of up to $65,000 [included with fees], a service award of $10,000 for each of three class representatives, a net PAGA payment of $37,500, and settlement administration costs of $32,642.35. After these expenses, the class would get $1,624,857. The average payout per class members would be $500. The proposed class notice form and procedure are adequate. There were...

Excerpt: ... the [PAGA] does so as the proxy or agent of the state's labor law enforcement agencies." (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175, 185; Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 671.) A person asserting a claim on behalf of the LWDA under PAGA must obtain court approval for any settlement. Labor Code 2699(l)(2) states: "T...

Excerpt: ...to Strike is GRANTED IN PART and DENIED IN PART as set forth below. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, 1/26/2021, 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 Network, password # 5102676935. If a hearing is requested, the Court w...

Excerpt: ...laintiff's compliance with its discovery obligations starting in July 2020. The parties should know that the Court did review their memoranda and the declarations of counsel. The Court agrees with Defendant's contention that it was more than accommodating to Plaintiff's counsel when repeated requests for additional time were made. The Court notes that Plaintiff waited until almost sixty (60) days had passed after Defendant served the motion to co...

Excerpt: ...exist therefor." (CCP § 527(a).) "The law is well settled that the decision to grant [a restraining order] rests in the sound discretion of the trial court." (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal. App. 4th 1244, 1251 [internal citations omitted].) "[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue [a restraining order]." (Id.) "The first is the likelihood that the plaintiff wil...

Excerpt: ...categories of persons. At issue in this case is CCP 203(a)(11), which states: "(a) All persons are eligible and qualified to be prospective trial jurors, except the following: ... (11) Persons who are currently required to register as a sex offender pursuant to Section 290 of the Penal Code based on a felony conviction." Plaintiff asserts a single cause of action asserting that the legislative action eliminating the categorical exclusion for most...

Excerpt: ...tion 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. Tri-City Hosp. Dis...

Excerpt: ...ica Waddell, Owen Rosenberg, Carrie McDougle, Chris Lemke, and Angela Miller move to intervene in this litigation and have filed papers in opposition to the motion for approval. Both Clark and SCJ oppose the motion to intervene. All non-parties except Michelle Moran subsequently withdrew their motion to intervene. If any party timely contests this tentative ruling, argument will be heard before Judge Michael Markman by videoconference on Tuesday,...

Excerpt: ...representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer." (Cal. R. Prof. Conduct, R. 4.2(a) [comments to rule states: "This rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is on...

Excerpt: ...iff opposed the motion with a three part argument. First, as a matter of law, an employee plaintiff suing under the PAGA does so as the proxy or agent of the state's labor law enforcement agencies. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381; Z.B. N.A. v. Superior Court (2019) 8 Cal.5th 175, 185; Kim v. Reins International California (2020) 9 Cal.5th 73, 81.) Second, as a matter of fact, the state agencies are not a party...

Excerpt: ...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 defendants eith...

Excerpt: ...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. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persu...

Excerpt: ...d to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a 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 ...

Excerpt: ...� 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 is no merit to a claim for damage...

Excerpt: ... PM on Friday, January 29, 2020, 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, 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 ...

Excerpt: ...eto refuses 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," except under certain situations outlined by statute. (CCP § 1281.2.) The Court will not order arbitration of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist for the revocation of the agre...

Excerpt: ... 2.) On 8/2/18, plaintiff used a DOE amendment to name "NevCal Trucking" as a defendant. On 11/21/18, NevCal Trucking filed an answer. ANALYSIS AND ORDER Defendant NevCal Trucking asserts that the claim is barred by the statute of limitations. The statute of limitations is two years. (CCP 335.1.) The complaint when filed did not name NorCal Trucking. A plaintiff may, however, use the CCP 474 DOE amendment procedure. The amendment can relate back ...