Excerpt: ...ufficient 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 demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint ...

Excerpt: ...entative 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 order of the Court. Plaintiffs' First Amended Complaint alleges claims for violations of the Consumers Legal Remedie...

Excerpt: ... THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, January 19, 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, the Court will advise the parties of the manner in which the hearing will be conducted in advance of...

Excerpt: ...all file and serve an amended complaint no later than twenty-one (21) days from the date of this Order. STANDARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the prope...

Excerpt: ... Kaiser's San Leandro facility at 10:57 a.m.; he was admitted to the emergency room at 11:06 a.m.; he was first seen by a nurse at 11:29 a.m.; and he was first seen by a doctor at 12:04 p.m. (i.e., 67 minutes after he first arrived at the Kaiser facility.) Plaintiffs allege Mr. Arcamone was thereafter given various medical tests later that day, but they were not given or reviewed as promptly as Plaintiffs considered necessary, resulting in perman...

Excerpt: ...owed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Cal. Civ. Code § 1794.) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover c...

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 demur...

Excerpt: ... pursuant to Code of Civil Procedure § 1094.5, to reverse the July 14, 2020 decision by the Regents' Committee on Privilege & Tenure to deny Petitioner's grievance of his involuntary paid leave pending the investigation. Administrative mandate pursuant to § 1094.5 is available only if the challenged decision resulted from a proceeding in which (1) a hearing is required to be given, (2) evidence is required to be taken, and (3) discretion in the...

Excerpt: ...final time this motion will be continued. Plaintiff shall file and serve a substantive opposition to this motion by January 6, 2021, and the City of Berkeley shall file and serve a reply by January 15, 2020." Plaintiff has not filed a substantive opposition to this motion. The Court construes Plaintiff's failure to file any substantive opposition to this motion as conceding the validity of the arguments and evidence presented therein and abandoni...

Excerpt: ...atewide policy throughout California, knowingly and intentionally failed to provide "all working employees with suitable seats when the nature of the work reasonably permits the use of seats." (First Am. Compl. ¶ 9.) Plaintiff's Special Interrogatories seek information regarding the total number of potentially aggrieved employees in California as well as Citistaff's policies in regards to providing suitable seating to California employees. Plain...

Excerpt: ...(2).) "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." (CCP § 410.30(a).) MOTION TO DISMISS Plaintiff Robert Todd Smathers ("Plaintiff"), a California resident, brought this action against Defendant on September 30, 2020, alleging claim...

Excerpt: ... a motion to transfer venue, "[t]he moving party must overcome the presumption that the plaintiff has selected the proper venue." (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) It is a defendant's "burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits ...

Excerpt: ...e 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." (CCP ...

Excerpt: ...ause 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 shall be granted only if it completely disposes of a cause of action, an aff...

Excerpt: ... vehicle had a warranty. The vehicle had a variety of defects, including with the Powernet electrical architecture. Defendant FCA was aware of some of the defense but failed to disclose them. The Complaint asserts claims (1) under the Song-Beverly Act (Civil Code 1793.2(D)); (2) under the Song-Beverly Act (Civil Code 1793.2(B)); (3) under the Song-Beverly Act (Civil Code 1793.2(A)(3)); (4) for breach of written warranty; (5) for implied warranty ...

Excerpt: ...a protective order." (CCP § 2025.420(a).) "The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (CCP § 2025.420(b).) "This protective order may include, but is not limited to, one or more of the following directions: . . . [t]hat the deposition be taken only on certa...

Excerpt: ...nd (b), which provide: "(a) (1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon...

Excerpt: ...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 persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of materia...

Excerpt: ..., trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil Procedure ["CCP"] § 437c(c).) When a defendant moves for summary judgmen...

Excerpt: ...tion based on both the purchase contract and the construction contract. Esau did not waive the contract right to seek arbitration under either contract. Plaintiff filed this case on 7/24/20 and Esau filed the motion to compel arbitration on 12/21/20. This was reasonably prompt. The motion under the purchase contract is GRANTED. Sharma and Esau were parties to the contract. The contract at para 22 has an arbitration clause. The clause has the mand...

Excerpt: ...f filed its Complaint for Breach of Contract, Quantum Meruit, Common Counts, and Quantum Valebant on July 27, 2020. Plaintiff alleges that Defendants breached the parties' contract for the construction of a Linear Accelerator Concrete Vault for Defendants' Oncology Center. Plaintiff prays for an award of damages against Defendants under contract and quasi-contract theories in the sum of $549,688.61. Plaintiff states that it incurred reasonable ex...

Excerpt: ... to substitute Loranie Francis, a personal representative for the Estate of Mary Virgis Thomason given the death of Ms. Thomason. (See Lazar v Estate of Lazar (1962) 208 Cal.App.2d 554, 561.) The court on its own motion take judicial notice of the orders and determination of Ms. Francis as the executor and personal representative for Mary Virgis Thomason in probate action: The Estate of Mary Virgis Thomason, Alameda County Superior Court Case No....

Excerpt: ...ourt clerk entered the default of all three defendants. Defendants move to set aside the defaults pursuant to CCP §473(b). Defendant Moheb acknowledges service, but argues defendants' failure to respond was excusable, because Moheb retained David Wiseblood, after he was served, to contact Homestreet and negotiate a settlement, believing he was a licensed attorney. (Moheb Decl., par.3-4.) The evidence shows, however, that Moheb retained Wiseblood...

Excerpt: ... by a preponderance of evidence." (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 221-222.) A defendant's "minimum contacts" with California can establish the Court's personal jurisdiction over the defendant in two ways: generally (i.e., as to all claims and causes of action) or specifically (i.e., as to causes of action related to the contacts themselves). (See Bristol-Meyers Squibb Co. v. Superior Court of Cali...

Excerpt: ...amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit." (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047, citing Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Plaintiff has demonstrated that she wishes to add new causes of action and defendants based on new information gathered during discovery. (Declaration of Rosann Torres at ¶¶ 2-5.) It is unclear to the court whether Defend...