Excerpt: ...class certification. The Court denied class treatment because the Plaintiffs' motion argued that the Court should certify a class to litigate issues in support of a theory of liability that it had already held deficient on demurrer. The Court's order was without prejudice to a later motion "to certify issues that would support a finding of liability under the operative complaint." On November 13, 2020, Plaintiffs filed a notice of appeal seeking ...

Excerpt: ... of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (CCP § 36(e).) MOTION FOR PREFERENCE Plaintiff...

Excerpt: ...ved by the violative employment policies. AHS argues, in demurrer, that Plaintiff may not recover civil penalties from it because, as a public agency, it is not a "person" subject to suit under PAGA. AHS also argues that it is subject to the underlying Labor Code provisions Plaintiff seeks to enforce for the second through eighth causes of action. Plaintiff opposes in part. In her opposition, Plaintiff stated that she "voluntarily dismisses witho...

Excerpt: ...o person in trustee capacity and in individual capacity]; Benasra v. Marciano (2001) 92 Cal. App. 4th 987 [person signed agreement as a corporate officer and not in his individual capacity]; Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1731 [representing partnership is not representing partners individually]; Rule Prof Conduct 1.13 [organization as client].) The issue is complicated because a trust is a set of responsibiliti...

Excerpt: ...t will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. LEGAL STANDARDS The complaint must include a statement of the facts constituting the cause of action, "in ordinary and concise language." (C.C.P. 425.10(a)(1).) These are commonly referred to as "ultimate facts." (Doe v. City of Los Angeles (2007) 42 C4th 531, 550.) "Ultimate facts" are those that raise the issues on which the right to recove...

Excerpt: ... up to $15,000, a service award of $5,000 for each class representative, and settlement administration costs of up to $7,500, and a net PAGA payment of 1,250. After these expenses of approximately $145,400, the class would get $204,600. The average payout per class members would be $2,045. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analysis as ...

Excerpt: ...he 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 judicial notice ha...

Excerpt: ...y Gloves answered on 7/30/20. Espinoza v. Midwest Quality Gloves, HG20064308. On 6/1/20, Espinoza filed this alleging exposure to CrVI in leather gloves. The parties settled the claims. On 8/12/20, the court entered judgment. On 12/10/20 (after entry of judgment in Espinoza), CEH filed a motion to consolidate the cases. The essence of the motion is that Espinoza and Midwest both failed to file a notice of related cases under CRC 3.300, that all P...

Excerpt: ...demnity; 2) contribution; 3) declaratory relief; and 4) express indemnity. On February 26, 2020, Plaintiff Jason Ryan Kelly ("Plaintiff") settled his claims against all named Defendants in this matter. In the order of 9/18/20, the court found that each defendant agreed to bear their own costs and fees, in exchange for plaintiff's offer to dismiss his claims against them with prejudice. Defendants Sharifi, Lam, H&H Courier and East Bay Courier eac...

Excerpt: ...0, 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. The proposed class is appropriate for class certification. The motion makes an adequate analysis as required by Kullar...

Excerpt: ...n 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 per...

Excerpt: ... answer asserting arbitration as an affirmative defense. Starting 6/12/20, Del Taco's counsel began requesting that Ramirez submit his claims to individual arbitration. ORDER The Motion of defendant Del Taco to compel plaintiff Ramirez to arbitrate claims is DENIED. "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence ...." On a motion to compel arbitration, the "trial cou...

Excerpt: ...vice of process" for lack of specific jurisdiction, "the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction." (Snowney v. Harrah's Entm't, Inc. (2005) 35 Cal. 4th 1054, 1062.) "If the plaintiff meets this initial burden, then the defendant has the burden of demonstrating 'that the exercise of jurisdiction would be unreasonable.'" (Id.) "When a nonresident defendant challenges personal jurisdiction the ...

Excerpt: ... in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or ...

Excerpt: ...he month-to-month lease on June 1, 2014. Defendant Jordan purchased the property in 2016. Plaintiffs allege in their Complaint that Defendant has not complied with the myriad laws requiring her to maintain the premises in a safe and habitable condition since 2016. Plaintiff describes the problems with their unit and the common areas in paragraphs 12 and 13 of the Complaint. Plaintiffs allege that Defendant Jordan has known about the conditions fo...

Excerpt: ...either of the attorney declarations purportedly authenticating those deposition transcripts was made under penalty of perjury. Therefore, neither attorney declaration complied with the requirements of Code of Civil Procedure section 2015.5, and the deposition excerpts were inadmissible. The Court does not find that the failure by Plaintiffs' counsel to prepare declarations that complied with the legal requirements of Code of Civil Procedure secti...

Excerpt: ... OTO filed an appeal from the Labor Commissioner's order, decision, and award ("ODA") dated 8/25/15. Following various appellate proceedings, on 8/29/19, the California Supreme Court in the Arbitration Case found the superior court had set vacated the ODA in error and remanded the case back to the trial court. (OTO, L.L.C. v. Kho (2010) 8 Cal.5th 111, 138-141.) APPEALS FROM LABOR CODE 98 PROCEEDINGS A party that is not satisfied with the result o...

Excerpt: ...roversy and that a party thereto 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 f...

Excerpt: ...d opposition brief the separate statements of each party, and the authorities submitted by counsel, as well as counsel's oral argument, the Court hereby orders that Brightouse's motion for summary judgment against Plaintiff is DENIED because triable issues of fact remain on at least some of the causes of action stated in the Complaint. Summary adjudication is DENIED as to Plaintiff's first cause of action for breach of contract, on the ground the...

Excerpt: ...iff alleges that the pending nonjudicial foreclosure is improper because he repaid the secured loan "years ago", as was confirmed by a BNY executive in early 2016. (See Complaint, paragraph 31.) This case is the seventh action Plaintiff has filed since 2009 concerning title to the subject real property. The Court determines that Plaintiff's claims in this seventh action are barred by res judicata, based on the resolution of Alameda County Superio...

Excerpt: ...(ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "The grounds for [the] motion . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 438(d).) A defendant may only make this motion if "the defendant has already filed his or her answer to the complaint and the time for the defend...

Excerpt: ... took off the safety sleeve and resumed work, at which point he was injured by a metal strip that scratched his wrist. Defendant's demurrer to Plaintiff's First Cause of Action for "Intentional Bodily Injury" is SUSTAINED, WITHOUT LEAVE TO AMEND. The First Cause of Action does not allege that Defendant engaged in any intentional conduct that caused Plaintiff to suffer a bodily injury. Rather, the First Cause of Action alleges that Plaintiff was i...

Excerpt: ...mposes a heightened duty of care on a common carrier, but only while passengers are in transit "and until they have safety departed the carrier's vehicle." (See McGettigan v. Bay Area Rapid Transit District (1997) 57 Cal.App.4th 1011, 1017.) Here, Plaintiffs allege that Plaintiff Alanah Alesanah was stabbed in the arm by a "disruptive" homeless man after disembarking from a BART train at the Coliseum station. BART is not liable under Civil Code �...

Excerpt: ...fearn 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...

Excerpt: ...llation of Written Instrument. The Third Cause of Action is for Financial Elder Abuse. The Fourth Cause of Action is for Fraud by Concealment. The Fifth Cause of Action is to Quiet Title. The Sixth Cause of Action is for Fraud by Intentional Misrepresentation. The Court agrees with Cross-Defendant's contention that under the "primary right" theory of code pleading, the primary right that Cross-Defendant allegedly infringed is the right to be free...