Excerpt: ... OVERRULED. Legal Standard for Demurrer 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. § ...

Excerpt: ...y Act and Fair Employment and Housing Act claims alleged in the original Complaint and First Amended Complaint. Plaintiff filed his Second Amended Complaint on 5/14/2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Friday, June 11, 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...

Excerpt: ...a deposition, the court, upon motion reasonably made by [a party] . . . , may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders." (CCP § 1987.1(a).) "In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of ...

Excerpt: ...6-1087.) Class actions cannot be dismissed without Court approval to ensure that the named plaintiff and his or her counsel have not used the threat of a class action as leverage to obtain an unreasonable settlement for the individual named plaintiff. This serves two purposes. First, this ensures that the named plaintiff and his or her counsel do not enrich themselves in violation of their fiduciary duties to the absent class members. (Pirjada v....

Excerpt: ...Plaintiff asserts in this case fall within the scope of disputes that Plaintiff agreed to arbitrate in the MVOA and the RISC. The Court rejects Plaintiff's argument that Defendant lacks standing to enforce the parties' arbitration agreement because it assigned its interest in the RISC to US Bank. Plaintiff's claims against Defendant arises out of its purchase of Defendant's vehicle, and therefore Plaintiff has expressly agreed to arbitrate those ...

Excerpt: ...hes of contract and statutory violations related to its actions as a PBM. The motion to compel arbitration presents several issues about several agreements. The court addresses them separately. DOES ARBITRATOR DECIDE ARBITRABILITY As a general principle, "the enforceability of an arbitration agreement is ordinarily to be determined by the court. The parties may agree in the arbitration provision, however, that the enforceability issue will be del...

Excerpt: ...y to amend any 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...

Excerpt: ...e presented and instead believed that it would be best for the Court to make the call. The entire reason the Legislature imposed a meet-and-confer requirement for demurrers and other pleadings motions was that too many litigants were asking the court to make the call. The Legislature determined that California trial courts were spending too much time and effort resolving endless rounds of pleadings challenges. Plaintiff must relent if he is not a...

Excerpt: ...le amount not less than five hundred dollars ($500)...." (C.C.P. § 483.010.) The following findings must be made "in accordance with Section 483.015" to justify issuance of an attachment order: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for purposes other th...

Excerpt: ... conduct and requiring them to take certain specified actions. This action arises from a dispute over control of the Mohammadia Islamic and Cultural Center ("the Center"), which owns and occupies real property located at 492 C Street, Hayward ("the Center's premises".) Sarwary, Hassanpour, and Basil claim to be officers of the Center and to serve on the Center's Board of Directors. Habib, et al. contend that a new election for the Center's Board ...

Excerpt: ...emurrer to the First Cause of Action for Promissory Fraud and Second Cause of Action for Cancellation of Written Instrument with leave to amend. The Court overruled Defendants' demurrer to the Third, Fourth and Fifth Causes of Action. Plaintiff did not file the First Amended Complaint until March 17, 2021. Plaintiff and Defendants submitted two stipulations seeking additional time for Plaintiff to comply with the Court's order of January 12, 2021...

Excerpt: .... As Plaintiff was chasing the intruders off his boat, he tore his Achilles tendon. Plaintiff seeks to hold the City liable for his injury under several legal theories. The demurrer to the First Cause of Action for "Vicarious Liability of Public Entity for Negligent Acts or Omissions of its Employees Pursuant to Government Code Section 815.2" is SUSTAINED, WITH LEAVE TO AMEND. To the extent that Plaintiff seeks to hold the City liable for its emp...

Excerpt: ...ohammad Aslam Habib and Mohammad Husain Nusratty have any standing to assert the First, Second, Third, and Fourth Causes of Action. The demurrer to the First Cause of Action for Conversion is SUSTAINED, WITHOUT LEAVE TO AMEND. Plaintiffs fail to allege facts demonstrating Defendants' conversion of funds belonging to the Mohammadia Islamic and Cultural Center ("the Center"). To the contrary, the First Amended Complaint alleges that the funds remai...

Excerpt: ...long as the amendment is "in the furtherance of justice, and upon such terms as may be proper." (Code of Civil Procedure ["CCP"] § 576; see also CCP § 473(a)(1) [allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rights of other parties." (McGuan v. Endovascular Technologies, Inc...

Excerpt: ...rts claim for negligence, habitability, and violation of the Oakland Tenant Protection Ordinance. Defendant AMP Property Management owned the property after December 2018. AMP Property Management in in default. There is evidence that the unit was unlawful, suggesting that the lease agreement was unlawful. It is unclear whether the underlying lease is invalid and subject to rescission and plaintiff is entitled to a refund of some or all of the ren...

Excerpt: ...pay for the cost of preparing the record on appeal. (Govt Code 6103.) On 3/26/21, Plaintiff Muchnick then elected to use an appendix under CRC 8.124. PROCEDURE This motion concerns the interpretation and application of Rules of Court that relate to the record on appeal. CRC 8.124(a)(1) states that the superior court is to resolve disputes about the use of an appendix. APPLICATION OF GOVT CODE 6103 The Regents is a public entity, so the Govt Code ...

Excerpt: ... partnership, Clovis Body & Paint, owned by Plaintiff Lim and her son. There was a fire on May 11, 2016. Defendant is the property insurer. Defendant agreed to cover most of the loss and paid Plaintiff and the other owners the sum of $450,641.00. Defendant, however, declined to pay for damage to an industrial paint spray booth. Defendant contends that the industrial spray booth was owned by the tenant and was therefore not part of the insured pre...

Excerpt: ...e court finds that although Plaintiff sought an IDC first in December 21, 2021, due to limited scheduling for informal discovery conferences, the IDC was not able to be scheduled until April 9, 2021 and during that time, the time period to file was tolled since Plaintiff was unable to obtain a reservation number to file the motion until after the IDC occurred. The court therefore considers the motion on its merits. Plaintiffs' request to compel f...

Excerpt: ... a response to this information without an affirmative "opt in" from its current and former employees. ANI argues that the Belaire-West process of providing employees the opportunity to "opt out" of having their information provided is no longer acceptable following the California Consumer Privacy Act ("CCPA") and California Privacy Rights Act ("CPRA"). The CCPA became effective January 1, 2020 (Stats. 2018, ch.55, § 3 [amending Civ. Code § 179...

Excerpt: ...ameda County. (1AC, para 8, 11.) The order of 3/4/21 denied Defendant's previously filed a motion to change venue. The citations to paragraphs in the 1AC in the prior order demonstrate that he court was considering the 1AC to be the operative complaint. Regarding CCP 395.5, the prior order states: "Defendant does not present evidence that it makes no sales in Alameda County and ships no product to Alameda County. Plaintiff conversely does not pre...

Excerpt: ...the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5.) The court's review is whether there is substantial evidence in the record to support the factual findings. "Substantial evidence" is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. ... Such evidence must be reasonable, credible, and of solid value." (California Youth A...

Excerpt: ...e 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 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 ...

Excerpt: ...vailable generally in the protection or to prevent the invasion of a legal right. (Meridian, Ltd. v. City and County of San Francisco, et al. (1939) 13 Cal.2d 424.) The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the la...

Excerpt: ...mployee who allegedly suffers a wrongful termination as a result of reporting or refusing to participate in her employer's pattern of conduct in violation of RICO does not have standing to sue under Rico because the employee was not proximately injured by the alleged corrupt pattern of conduct. (Reddy v. Litton Industries, Inc. (9th Cir. 1990) 912 F.2d 291, 294, stating in relevant part: "All of the circuit courts that have considered this issue ...

Excerpt: ...t the moving party is entitled 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...

Excerpt: ... partnership, Clovis Body & Paint, owned by Plaintiff Lim and her son. There was a fire on May 11, 2016. Defendant is the property insurer. Defendant agreed to cover most of the loss and paid Plaintiff and the other owners the sum of $450,641.00. Defendant, however, declined to pay for damage to an industrial paint spray booth. Defendant contends that the industrial spray booth was owned by the tenant and was therefore not part of the insured pre...

Excerpt: ...h the hearing will be conducted in advance of the hearing. The Court has reviewed the parties' respective papers and provides the following to focus discussions at the hearing. The Court is inclined to grant Plaintiff's Motion. Defendants' Opposition does not appear to contest Plaintiff's request that trial be bifurcated into a liability phase followed by a damages phase. Instead, Defendants' Opposition appears to focus largely on legal disputes ...

Excerpt: ...vailable generally in the protection or to prevent the invasion of a legal right. (Meridian, Ltd. v. City and County of San Francisco, et al. (1939) 13 Cal.2d 424.) The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the la...

Excerpt: ...dmitting 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.) The court notes that both sides cite federal pleadings cases. Such cases apply federal ...

Excerpt: ... deadline is currently set for July 30, 2021. The trial is set to begin in January 2022. Plaintiff now moves for leave to file a Third Amended Complaint to add US eDirect, Inc. ("US eDirect") as a defendant. US eDirect was a subcontractor to Defendants as part of Defendants' larger contract with the California Department of Parks and Recreation ("DPR"). The principal role of US eDirect was to develop ReserveCalifornia.com and testing the website ...

Excerpt: ...s attending California public schools. (Butt v. State of California (1992) 4 Cal.4th 668 (Butt).) Compton seeks to intervene, asserting that the case involves issues that cannot be resolved without their participation and that resolving the case with their involvement would impair their interests Compton's proposed compliant in intervention includes claims that are not currently in the case MANDATORY INTERVENTION Mandatory intervention is governe...

Excerpt: ...parties submitted a revised settlement agreement and class notice on April 14, 2021. The parties also filed a declaration regarding S&F's financial condition conditionally under seal and also now move to seal that record on grounds of financial privacy. CHANGES TO MOTION FOR PRELIMINARY APPROVAL The Court's concerns regarding participation by absent class members at the final approval hearing have been addressed by the notice and agreement's prov...

Excerpt: ...98) [Unpublished].) The COVID-19 pandemic started in March 2020. The COVID-19 pandemic has exposed and highlighted certain deficiencies in the California educational system In June 2020, the State of California enacted SB 98, which authorized distance learning and authorized $5.3 billion to assist school districts with that and other COVID related challenges. As of June 2021 (the date of the hearing), the COVID-19 pandemic is not over. As of June...

Excerpt: ...t 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 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 shif...

Excerpt: ...r 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 if, and only if, the eviden...

Excerpt: ...ailer worker employed by Defendant from 2016 until 2020. Plaintiff alleges in paragraph 1 of the Complaint that he is representing the State of California and "other current and former employees at a retail store location" who were employed from April 24, 2019 until the date when judgment is entered. Plaintiff initially requested that the case be deemed complex and assigned to Department 23. On October 6, 2020, Plaintiff's request that the Court ...

Excerpt: ... for cannabis use and fails to inform the customers that they will be exposed to smoke as a reasonably foreseeable use of the product. (H&S 25249.6.) The 1AC filed 1/20/21 is the operative complaint. The 1AC asserts that defendant distributes its products in Alameda County. (1AC, para 8, 11.) The order of 3/4/21 denied Defendant's previously filed a motion to change venue. The citations to paragraphs in the 1AC in the prior order demonstrate that...

Excerpt: ...h the hearing will be conducted in advance of the hearing. The Court has reviewed the parties' respective papers and provides the following to focus discussions at the hearing. The Court is inclined to grant Plaintiff's Motion. Defendants' Opposition does not appear to contest Plaintiff's request that trial be bifurcated into a liability phase followed by a damages phase. Instead, Defendants' Opposition appears to focus largely on legal disputes ...

Excerpt: ...re will be attorneys' fees and cost of up to $50,000 (40%), costs of up to $TBD, a service award of $4,000 for each class representative, and settlement administration costs of up to $8,000. After these expenses of approximately $80,000, the class would get $45,000. The average payout per class members would be $1,250. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion ...

Excerpt: ...of which Plaintiff was also the co- founder) because Plaintiff had sexually assaulted an employee. McSilva allegedly reposted Arkin's defamatory posts with additional commentary, specifically "Salesforce this sexual predator now works for company as Global Head of Product for Music and Entertainment. What are you going to do about it?" As a result of that posting, Plaintiff alleges he was fired from his employment at Salesforce. As to Plaintiff's...

Excerpt: ... sold by T-USA. Ryan Mark has sued UC, alleging a dangerous condition of public property, and he has also sued T-USA for various product liability claims. In its First Amended Cross-Complaint, T-USA alleges causes of action against UC for indemnity (both equitable and contractual) and declaratory relief. T-USA has also alleged a Sixth Cause of Action against UC for dangerous condition of public property. However, T-USA has not alleged that it was...

Excerpt: ...attorneys' fees of up to $172,500 (30%), costs of up to $15,000, a service award of $7,500 for the class representative, a net PAGA payment of $18,750, and settlement administration costs of up to $15,000. After these expenses, the class would get $327,000. The average payout per class members would be $3,800. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an ...

Excerpt: ...ake any supplemental filings at least 5 court days before the hearing. LWDA/PAGA RELEASE The settlement agreement does not expressly release the claims of the LWDA that were asserted in the case. The briefing suggests that the parties intend to release the claims of the LWDA for penalties. In any such release, the named plaintiff acting as agent or proxy of the LWDA releases the claims of the LWDA. The named plaintiff does not represent the "aggr...

Excerpt: ...herance 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 Plaintiff has demonstrated a probability of prevailing on the claim. Plaintiff demonstrates this by showing the Complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted ...

Excerpt: ...re will be attorneys' fees and cost of up to $50,000 (40%), costs of up to $TBD, a service award of $4,000 for each class representative, and settlement administration costs of up to $8,000. After these expenses of approximately $80,000, the class would get $45,000. The average payout per class members would be $1,250. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion ...

Excerpt: ...y shifts the burden of production of evidence to Plaintiffs William Cook ("Mr. Cook") and Laurel Cook ("Plaintiffs"), the Court finds that Plaintiffs have submitted sufficient evidence in opposition to identify a triable issue of material fact regarding threshold exposure. Defendant's Motion for Summary Adjudication is GRANTED as to Plaintiffs' punitive damages claim. Plaintiffs "waive" the punitive damages claim in footnote 1 of Plaintiffs' brie...

Excerpt: ...eXpress of the intent to contest the tentative order. If a hearing is requested, the hearing will be conducted on Tuesday, June 8, 2021 at 3:00 p.m., using the bluejeans network. 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 allege that Mr. Atkinson wa...

Excerpt: ... personally served with the Summons and Complaint on June 23, 2020. Defendants' defaults were entered on 10/13/20. Pursuant to the request of Plaintiff, the court entered Default Judgment against the defendants on March 1, 2021. Defendants filed the instant Motion to Set Aside Default and Default Judgment on April 27, 2021. According to the Defendant's motion, this case is one of a trio of cases filed by Plaintiff Elvecio Machado against his brot...

Excerpt: ...ack to 7/5/19. The LWDA's claims for penalties against Lucid extend back to 8/31/19. FACTS On 9/26/19, plaintiff started employment. (1AC, para 6.) On 10/28/20, Plaintiff stopped employment. (1AC, para 6.) On 12/22/20, Plaintiff sent a PAGA letter to the LWDA regarding defendant Atieva. On 12/30/20, plaintiff filed this case against defendant Atieva. On 1/22/21, Plaintiff sent a PAGA letter to the LWDA regarding defendant Lucid. On 2/24/21, plain...

Excerpt: ...itting 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 correct any def...

Excerpt: ...cia fell from 13 feet high and hit him. The inspection showed that it fell because it was cut 1/8-1/16 inch short and out of square Plaintiff asserts a single claim for dangerous condition of public property. (Govt Code 835.) (SSUF 1) EVIDENCE The objection of the Regents to the Declaration of Zachary Moore is DENIED. Moore is a mechanical and forensic engineer and is a qualified expert in those areas. Moore's testimony that the fascia was an uns...

Excerpt: ...ainst which of the two named Defendants (or both) each cause of action is directed. In addition, where (as here) a pleading "jumble[s] together" distinct theories of liability into the same cause of action, the pleading may be subject to a demurrer for uncertainty. (See The Rutter Group's California Practice Guide: Civil Procedure Before Trial section 8:104.) Plaintiff's Sixth Cause of Action, as currently, pled, appears to combine claims for dis...

Excerpt: ...required the county board of supervisors to "consult[] with the local pediatric hospital" regarding expenditures. Children's Hospital demurred to that Complaint, and the Court sustained the demurrer without leave to amend on March 30, 2021 and ordered Children's Hospital dismissed as a party to this action. Children's Hospital filed a summary memorandum of costs on April 6, 2021, claiming $513.76 in filing and motion fees. Plaintiffs now move to ...

Excerpt: ... 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 judgment, it is the defendant's burden as movant to ...

Excerpt: ...the motion and has indicated in prior meet and confers that Plaintiff will not oppose the motion to strike. Therefore, the court GRANTS the motion to strike and STRIKES the Second (erroneously labeled "Third") Cause of Action, in the First Amended Complaint, in its entirety, Pages 4:13-5:17. PUNITIVE DAMAGES Plaintiff seeks to strike the third cause of action for Punitive Damages, as well as the prayer for "Punitive Damages/Exemplary Damages." In...

Excerpt: ...essive speed given the conditions. Plaintiff further alleges that Defendant admitted that he was inattentive and that he could not explain why he failed to stop his vehicle. The Court does not agree with Defendant's assertion that Plaintiff is required to meet a heightened pleading standard when seeking punitive damages. There simply is no clear authority for this common assertion made by defense counsel. In Brousseau v. Jarrett (1977) 73 Cal.App...

Excerpt: ...se responses, the portion of this motion relating to these interrogatories has been MOOTED by the service of supplemental responses. The parties are directed to meet and confer, prior to bringing any further motions addressing this discovery. Insufficient efforts will result in orders requiring additional meet and confer conferences and a Joint Statement. Additionally, although not directly addressed by the parties, it appears the motion as been ...

Excerpt: ...intiff's Person Most Qualified ("PMQ") are overbroad under both federal (FAA) and California law. However, it is also clear that the scope of permissible discovery here is broader than that argued by Alere, particularly under the present facts, where Alere is admittedly not a party to the relevant arbitration agreement and this case has been litigated in this Court for well more than a year. At this point, it is not clear what the appropriate par...

Excerpt: ... Interrogatories and for Monetary Sanctions ("MPO Form Rogs"); (3) Defendant's Motion for Protective Order re: Plaintiff's Inspection Demands and for Monetary Sanctions ("MPO RFPDS"); and (4) Defendant's Motion to Compel Further Responses to Requests for Production of Documents Nos. 8, 11, 13, 14, 17, 23, 24, 28, 34 and 36 ("Defendant's MTC"). Ethel Tom in her capacity as a cross-complainant represented by separate legal counsel joins in Defendan...

Excerpt: ...The motion of Plaintiff Center for Environmental Health for approval of settlement with General Mills, Inc, in Center for Environmental Health v. Barrell O' Fun Snack Foods, RG17-881932, regarding Animal Cookies is DENIED. STANDARD "[T]he court must determine the proposed settlement is just. ... [A] trial court should not approve an agreement contrary to law or to public policy. ... the court cannot surrender its duty to see that the judgment to ...

Excerpt: ...olated a variety of Labor Code provisions. The demurer and motion to strike concern legal issues regarding whether claims exist as a matter of law rather than challenges ot the adequacy of the factual allegations. DEMURRER The Demurrer of Golden Gate Bell to 7th cause of action in the First Amended Complaint filed 2/4/21 is SUSTAINED WITH LEAVE TO AMEND. The 7th cause of action alleges failure to pay timely wages as required under Labor Code 204....

Excerpt: ...ese causes of action were alleged in Plaintiff's Second Amended Complaint, and Defendants could have - but did not - demurrer to these causes of action in the Second Amended Complaint. Defendants therefore cannot demurrer to these causes of action, for the first time, in the Third Amended Complaint. The demurrers to the Fifth Cause of Action for "Commission of Primary Contravention of the Racketeer Influenced and Corrupt Organization Act (RICO) (...

Excerpt: ... settlement is within the "reasonable range" of the settling defendant's proportional share of comparative liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) Courts consider (1) "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability"; (2) "the amount paid in settlement"; (3) "the allocation of settlement proceeds among plaintiffs"; and (4) "a ...

Excerpt: ...ies. The lease agreement at issue was signed on September 21, 2015. Brookfield Properties Retail, Inc. acquired Rouse Properties in 2016. The Court's ruling on the demurrer of Brookfield Properties Retail, Inc. is not based on the argument that it is not the successor-in-interest of Rouse Properties. 2. Defendant's demurrer to Plaintiff's First Cause of Action for Anticipatory Breach of Contract, Second Cause of Action for Breach of the Implied C...

Excerpt: ...id up front and approximately 21,000,000 to potentially be paid in April 2021, if the Rhodes exercised their "put payment" rights under the agreement, which would purchase Plaintiffs' remaining 25% interest in the company). As part of the sale, Rhodes negotiated and signed a Stock Purchase Agreement ("SPA"), which contained a mandatory forum selection clause requiring that all disputes be litigated in Cook County, Illinois. The language of the fo...

Excerpt: ...use building at 1212 San Pablo Avenue in Berkeley collapsed while she was walking on it. Plaintiff alleges that defendants negligently maintained the roof such that it became weakened and dilapidated and a danger to anyone standing of walking on the roof. At all relevant times, defendant John Toki, was co-owner of the property. (Separate Statement of Undisputed Material Facts ("SSUMF") No. 2.) In August of 2015, Toki rented the entire premises to...

Excerpt: ...illips filed the motion to transfer venue to San Diego. On 10/20/20, Leslie Phillips had filed her answer to the cross-complaint. MOTION #1 - PREFERENCE The motion of Stephen E. Phillips for trial preference is GRANTED. STANDARD UNDER CCP 36(a). CCP 36(a) states: (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The ...

Excerpt: ...mpensation Plan And Agreement and plaintiff had time to review it before deciding whether to sign it. The arbitration provision is presented in the same manner as the other provisions in the Agreement. Plaintiff initialed each page of the agreement. Plaintiff had the opportunity to "out-out" of arbitration and did not exercise that choice. The agreement is a take it or leave it agreement. This is an indication that it is procedurally unconscionab...

Excerpt: ...The motion of Plaintiff Center for Environmental Health for approval of settlement with General Mills, Inc, in Center for Environmental Health v. Barrell O' Fun Snack Foods, RG17-881932, regarding Animal Cookies is DENIED. STANDARD "[T]he court must determine the proposed settlement is just. ... [A] trial court should not approve an agreement contrary to law or to public policy. ... the court cannot surrender its duty to see that the judgment to ...

Excerpt: ... is DROPPED. The motion of Defendants to strike the false and contradictory portions of Plaintiff's First Amended Complaint, pursuant to CCP §§ 435 and 436, is DROPPED. The demurrer and motion to strike are dropped because attorney Simona A. Farrise Best did not comply with her statutory obligation to make a reasonable and good faith attempt to resolve the disputed issues informally prior to filing the demurrer and motion to strike. See CCP §�...

Excerpt: ...278") to bring suit against a dissolved Delaware Corporation. (Del. Rules of Court, Rule 15(c); Resource Ventures, Inc. v. Resource Management Internat., Inc. (Del. D.C. 1999) 42 F.Supp.2d 423, 428.) The Demurrer was originally set for hearing on 4/2/2021. By Order of that date, the Court continued the hearing on the Demurrer so that the parties could submit supplemental briefing regarding the legal effect under Delaware law where a lawsuit filed...

Excerpt: ...olated a variety of Labor Code provisions. The demurer and motion to strike concern legal issues regarding whether claims exist as a matter of law rather than challenges ot the adequacy of the factual allegations. DEMURRER The Demurrer of Golden Gate Bell to 7th cause of action in the First Amended Complaint filed 2/4/21 is SUSTAINED WITH LEAVE TO AMEND. The 7th cause of action alleges failure to pay timely wages as required under Labor Code 204....

Excerpt: ...ons based on lack of personal jurisdiction. Having reviewed Plaintiffs' 423 page Responsive Separate Statement of Disputed Written Discovery Requests and Responses, the Court finds that large portions of Plaintiffs' discovery impermissibly go beyond the limited discovery allowed by the Court and comes close to a misuse of the discovery process within the meaning of CCP §§ 2023.010(a), (c) and (i), as described more fully below. To begin, Plaint...

Excerpt: ...e for discovery the plaintiff must introduce sufficient evidence to establish a prima facie case of falsity or unprivileged statements. (See Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1351.) Plaintiff seeks discovery as to all posts made by Defendant Tyler McSilva on Instagram. The only evidence Plaintiff has submitted that McSilva made any statements on Instagram about or referring to Plaintiff is the declaration of Plaintiff's broth...

Excerpt: ...0.) However, because NAPA has not timely sought a protective order pursuant to CCP § 2025.420, Plaintiffs' counsel may physically attend the PMQ deposition at an appropriate location pursuant to CCP § 2025.310(b). If any party wishes to contest this Tentative Ruling, no later than 4:00 PM on Thursday, May 28, 2021, contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to co...

Excerpt: ...ss certification hearing for 01/10/2019. The time between filing and the reservation was 3 years and 10 days. What is the effect of the time gap, if any, on Defendant's Motion to Dismiss? 2. The Motion for Class Certification was heard on 09/13/2019 and the class was certified on 09/27/2019. Between Plaintiff obtaining its reservation on 02/15/2018 and the order certifying the class - a period of approximately 1 year and 7 months - the parties en...

Excerpt: ...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 the p...

Excerpt: ...o so led to Plaintiff being robbed and shot while making a delivery. However, Plaintiff was robbed and shot while making a delivery for Defendant Royal & Mitchell Logistics LLC dba Royal Greens ("RG"), not 3K. Plaintiff fails to allege why 3K is liable for RG's purported failure to verify its own customers. The alleged representation by an unnamed person working for 3K (presumably Stephen Carson) that "he" had a separate business that needed a dr...

Excerpt: ... (See Complaint paragraph 9.) Plaintiff alleges that during that time period, he had 62 prescriptions handled by Le. (See Complaint, paragraph 12.) Plaintiff alleges that Defendant made a prescription error on August 15, 2007, which he settled through a small claims case (see Complaint paragraph 7); he does not allege that Defendant has made any prescription errors since that date. Defendant's demurrers to the First Cause of Action for Invasion o...

Excerpt: ...eal property located at 936 Bayview Avenue in Oakland. Plaintiff alleges that the pending nonjudicial foreclosure is improper because he repaid the secured loan "years ago" and was told by one or more BNY executives, either in 2016 or in 2019 or both, that he no longer owed any money on the loan secured by the subject real property. (See First Amended Complaint, paragraphs 17, 19, 22, and 32.) This is the seventh action Plaintiff has filed since ...

Excerpt: ...ed and managed by Defendant Best Bay Apartments, Inc. is located at 2701 65th Avenue, in Oakland. Plaintiff Taylor testified that her unit, Unit #102, is on the first level above the parking garage. The Court appreciates that counsel for Defendant attached a copy of the Complaint to the courtesy copy of its motion for summary judgment. Plaintiff's First Cause of Action is for Premises Liability. Plaintiff's Second Cause of Action is for General N...

Excerpt: ...making an appearance. On January 16, 2019, Defendant filed its first Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues. Plaintiff's First Amended Complaint included a single Cause of Action for Negligence. On April 5, 2019, the Court granted in part Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues. In the order, the Court ruled that Defendant did not "make a prima faci...

Excerpt: ...Plaintiff filed notice substituting Kaiser Foundation Hospitals in the place of DOE 1. Plaintiff's Complaint, which includes ten (10) separate causes of action, clearly violates the requirement that that counsel set forth ultimate facts supporting the ten (10) claims in ordinary and concise language. See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550-552 (plaintiff should plead ultimate facts and not evidentiary facts); and C.A. v. William...

Excerpt: ...g competent testimony. The court will not require that the PMQ review over two thousand loan files from the trust at issue in order to be found to serve as PMQ for the topics at issue below. Request No. 2: Terms and conditions for loan modifications within the TRUST, both permanent and temporary: The request for further testimony is DENIED. Plaintiff has already obtained relevant testimony and the period between 2007 and 2012 is not at issue in t...

Excerpt: ...nsequences" of its conduct and that it willfully and deliberately failed to avoid those consequences, as would be required to obtain an award of punitive damages based on purportedly reckless misconduct. (See, e.g., Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1160.) More specifically, Plaintiffs have not alleged facts demonstrating that it was probable that mandatory training for Uber drivers on state and local rules of the road would reduce or ...

Excerpt: ...ught pursuant to Code of Civil Procedure section 410.30(a), Anand fails to submit admissible evidence demonstrating that all named defendants, including Anand, are subject to jurisdiction in the courts of India and that the claims asserted in this case are not barred by any statute of limitations there. (See, e.g., Aghaian v. Minassian (2015) 234 Cal.App.4th 427, 431.) To the extent this motion is based on the convenience of witnesses pursuant to...

Excerpt: ...bited subletting or assigning the premises without first obtaining MB's prior written consent, (2) prohibited using the premises to illegally cultivate controlled substances, and (3) required GZ to pay for electricity and waste management services. The demurrer to the Second Cause of Action for Common Counts is SUSTAINED, WITH LEAVE TO AMEND to allege facts demonstrating why GZ owes MB $350,000, and how that amount was determined. The demurrer to...

Excerpt: ...and § 820 as the statutory basis for their negligence claims against NH, AC, and Brar. Defendants contend that as a matter of law, they owe no duty under either § 815.2 or § 820 to nonstudents. Based on the facts alleged in the Complaint, the Court cannot make that determination in this case. Plaintiffs allege they were assaulted by Defendants D.S. and T.S. on the grounds of James Logan High School while there to report bullying Plaintiff Esme...

Excerpt: ...s Status. The parties have each submitted additional briefing, which the Court has considered. Defendant's Demurrer to the FAC's Second and is SUSTAINED IN PART and OVERRULED IN PART, as set forth below. Defendant's Demurrer to the FAC's Third Cause of Action is OVERRULED. Defendant's Motion to Strike Portions of the FAC is GRANTED IN PART and DENIED IN PART as set forth below. Plaintiff may serve and file a Second Amended Complaint consistent wi...

Excerpt: ...Amended Complaint in consolidated Case No. RG19-0044357 is DENIED. Those two cases have been consolidated for all purposes, and therefore it makes no difference whatsoever whether the claims are asserted in a cross- complaint or in the present First Amended Complaint. The motion is DENIED as to Item No. 2 in the Notice of Motion. MB adequately alleges facts that, if true, may support a finding that GZ is the alter ego of Skye. Whether those facts...

Excerpt: ...quested. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, May 25, 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 will advise the parties of the manner in which the hearing...

Excerpt: ...Specifically, Plaintiff consulted with Palmer concerning a "Repurchase Notice" Plaintiff received from Color Spot Holdings Inc. ("CSH"), in which CSH indicated its intent to exercise its contractual right to purchase all of Plaintiff's shares of stock in CSH. After consulting with Palmer, Plaintiff and CSH entered a Stock Redemption Agreement and a Subordinated Promissory Note, both dated October 14, 2011, which together formed an integrated agre...

Excerpt: ...ire-fighter who was terminated by defendant Alameda County Fire Department ("Defendant") in November 2018. Defendant contends that Plaintiff was terminated for violations of Defendant's workplace violence policy. Plaintiff alleges that the reasons given for the termination were pretextual. The Court found the Moving papers to be inadequate to explain the nature of the dispute here, which is adequate grounds to deny the motion. Most importantly, P...

Excerpt: ...ing necessary to justify an exception to the privilege. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, May 25, 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 will advis...

Excerpt: ...fety of students and invited guests on school premises. Plaintiffs do not oppose the motion to strike, except for the reference to Education Code § 32282 in Complaint paragraph 66. Whether a statute creates a mandatory duty for a public entity is a question of law for the Court. (See De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 257.) A statute is deemed to impose a mandatory duty on a public entity only if it affirmatively requi...

Excerpt: ...n a workday. Second, that AMC would continue to define work periods based on the start and stop times of the time worked. This affects the entitlement to and calculation of Labor Code 226.7 payments for missed meal periods and rest breaks because they are based when breaks are provided during a work period. Plaintiff brings this motion to address the apparent inconsistency of calculating time for one purpose based on a midnight to midnight workda...

Excerpt: ...heard on Tuesday, May 25, 2021 at 9:00 a.m. via ZOOM, which may be accessed through the links set forth below. The Court requests counsel attending please log on 30 minutes prior to the start of the hearing so that all appearances are noted and this matter can be timely called at 9 a.m. Note: this is not a telephonic appearance so your device should be equipped with a video camera. The following is the link and other information regarding the ZOO...

Excerpt: ... clause is void and unenforceable. SICHI opposes. The motion is DENIED. LEGAL STANDARDS The purpose of summary adjudication procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, 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, 84...

Excerpt: ...16,666.67 (33 1/3%), costs of 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. There were no opt outs and no objections. The proposed class is appropr...

Excerpt: ...ns and entered default against Harish Ram, the court cannot enter judgment until the court has found that there is underlying wrongdoing has been established. (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, §§151- 152, pp. 281-286; Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581; Richard B. LeVone v. Higashi [Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who do not commit th...