Excerpt: ...n was not specific as to the grounds on which the motion pertaining to Mr. Cuturic was based, "the supporting memorandum addressed the allegations as to Mr. Cuturic...." Thus, the court understood this to mean Mr. Cuturic was moving separately for summary judgment on all causes of action as to him. Nevertheless, because Plaintiffs argued at the hearing that the lack of specificity caused them to focus on Dr. James's asserted liability not on that...

Excerpt: ...on (violation of Penal Code § 496) the demurrer is SUSTAINED, pursuant to C.C.P. § 430.10(e), WITH LEAVE TO AMEND to allege facts sufficient to constitute a cause of action for damages under Penal Code § 496, including facts to the effect that Cross-Defendants received property "that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained," or concealed, sold or ...

Excerpt: .... 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 demurrer the facts alleged in the pl...

Excerpt: ...urrer sufficiently demonstrates that Plaintiff's complaint, filed on January 29, 2019, does not state facts sufficient to constitute a cause of action and is uncertain for all the grounds addressed in the demurrer and accompanying memorandum, which grounds are amply supported by the cited authority. (See Memo., pp. 1-15, and authority cited therein.) The court incorporates such arguments by reference herein instead of repeating them in their enti...

Excerpt: ...aint on November 5, 2018, along with an Amendment to Complaint on November 21, 2018, and a Miscellaneous Addendum to First Amended Complaint on November 27, 2018. A Miscellaneous Second Addendum to First Amended Complaint was filed on December 31, 2018, in which Plaintiff attempted to add sixteen additional causes of action. As part of its ruling on Defendants' demurrer to the First Amended Complaint, the Court ordered the Miscellaneous Second Ad...

Excerpt: ...Quiet Title is OVERRULED as to Israel Alvarado and SUSTAINED WITH LEAVE TO AMEND against all other cross-defendants. As to cross-defendant Israel Alvarado, defendant Beatrix Alvarado's ("Defendant") cross-claim for quiet title is simply a mirror image of Israel's quiet title claim in his Complaint (although she appears to concede and not question his 5% interest in the subject property). The Court therefore OVERRULES the Demurrer as to the quiet ...

Excerpt: ...See Code of Civil Procedure section 439(a)(4).) However, the Motion is DENIED because Plaintiff has adequately alleged facts that may give rise to the imposition of a constructive trust and an accounting. Regardless of whether a constructive trust is a remedy or a cause of action, Plaintiff has adequately alleged facts that may entitle Plaintiff to a constructive trust over the real property that is the subject of this action. Specifically, Plain...

Excerpt: ...nt Merrill were guests at The Claremont at the time. Plaintiff's husband was allegedly in the couple's hotel room when the incident occurred. Plaintiff's Catalan Sheepdog suffered serious injuries. Plaintiff's own injuries were relatively minor. Plaintiff has estimated that she has incurred special damages in the sum of $7,462.65. On August 9, 2018, the Court denied Defendant's Motion for Good Faith Settlement without prejudice due to the lack of...

Excerpt: ... approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) Although "there is a strong public policy favoring the settlement of litigation, this policy does not excuse a contractual clause that is otherwise illegal or unjust." (Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127.) The Court must ensure the settlement is not "contrary to law or to public policy." (Consumer Advocacy Group, Inc. v. Kintet...

Excerpt: ...failure to comply with § 1793.2(a)(3). (See First Amended Complaint, paragraphs 61-62.) Whether those allegations are true or not cannot be determined in ruling on this demurrer, but instead must be determined at a later stage of this case. The Demurer to the Fourth Cause of Action for Violation of Civil Code § 1791.2 and § 1794 is OVERRULED, for the same reason KMA's demurrer to this cause of action was previously overruled on March 8, 2019. ...

Excerpt: ...failing to comply with the agreement. Plaintiffs are entitled to the reimbursement of their reasonable attorney's fees and costs pursuant to the terms of the Settlement Agreement. Counsel for Plaintiffs shall prepare and submit a Proposed Order and Proposed Judgment no later than June 12, 2019. NOTICE: Effective June 4, 2012, the Court will not provide a court reporter for civil law and motion hearings, any other hearing or trial in civil departm...

Excerpt: ... Settlement and Release ("Settlement Agreement"). To protect the interests of absent class members, class action settlements must be reviewed and approved by the Court. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646 ["The [trial] court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement"].) California follows a two-stage procedure ...

Excerpt: ...as purportedly attached as Exhibit A. Exhibit A, however, did not contain responses to WFB's Requests for Admissions, Set One, which are the subject of the instant motion. (See Decl. of Shiv Samtani, Exh. A.) Defendant also filed a separate document on April 3, 2019, captioned as "Defendant's Responses to Plaintiff's Special Interrogatories, Set One." As stated in the court's order of May 15, 2019, those responses were to WFB's interrogatories ra...

Excerpt: ...court construes it as a motion to set aside entry of default rather than default judgment. The motion seeks to set aside the entry of default on three grounds: (1) it was entered through "extrinsic mistake as is set forth in the attached declaration of Cathy Perez, claims adjuster of Mercury Insurance"; (2) it is void based on a "questionable proof of service"; and (3) it is void based on the failure by Plaintiff Otis Duckett ("Plaintiff") to "fi...

Excerpt: ...ilure to comply with its obligations under § 1793.2(a)(3) was willful. KMA's motion to strike Plaintiffs' prayer for punitive damages is DENIED. KMA argues that Plaintiffs cannot recover punitive damages on their claims for violation of the Song-Beverly Consumer Warranty Act because Civil Code § 1794 does not expressly state that punitive damages are available for those claims. However, KMA fails to cite any case law holding that punitive damag...

Excerpt: ...ve all of the disputed issues informally prior to filing the motion on February 8, 2019. See CCP §§ 2031.310(b)(2) and 2016.040 (facts disclosing that a reasonable and good faith attempt at an informal resolution was made must appear in the meet-and-confer declaration). Counsel are advised that their meet-and-confer efforts should go beyond merely sending letters stating their respective positions. See Townsend v. Superior Court (1998) 61 Cal.A...

Excerpt: ...pliance with Health & Safety Code section 25249.6; (C) the reimbursement of $16,000 for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; and (D) the civil penalty of $1,500 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). The CJ requires that beginning on the date the Consent Judgment was signed by both parties, any Cov...

Excerpt: ...h in the text of Section 430.41(a)(1). Counsel does not comply simply by calling Plaintiffs and telling them that their First Amended Complaint fails to state any cause of action. The Court expects parties to comply strictly with the meet-and-confer obligation enacted by the Legislature. The Court is not surprised that Plaintiffs reflexively disagreed with counsel's evaluation of the First Amended Complaint. Defendants may file a second Demurrer ...

Excerpt: ...fendant did not bear its burden of proving that Congress intended to preempt state law in this instance. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) California recognizes "four species of federal preemption: express, conflict, obstacle, and field." (Id. at 936.) Each has its own distinct test. (Id.) Defendant incorrectly tried to conflate the latter three types of preemption into a...

Excerpt: ...fendant did not bear its burden of proving that Congress intended to preempt state law in this instance. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) California recognizes "four species of federal preemption: express, conflict, obstacle, and field." (Id. at 936.) Each has its own distinct test. (Id.) Defendant incorrectly tried to conflate the latter three types of preemption into a...

Excerpt: ...r or Seller shall be entitled to reasonable attorney fees and costs from the non- prevailing Buyer or Seller, except as provided in paragraph 22A." Paragraph 22A of the Agreement, in turn, states, in relevant part: "MEDIATION. The Parties agree to mediate any dispute or claim arising between them out of this Agreement...before resorting to arbitration or court action . . . . If, for any dispute or claim to which this paragraph applies, any Party ...

Excerpt: ...SC that required a contractor's license and that MPI did not have such a license. (Cross-Complaint, ¶¶ 16-18.) WSC alleges that, pursuant to Business and Professions Code section 7031(b), WSC is thus entitled to recover all compensation paid to MPI as an unlicensed contractor. (Id., ¶ 19.) MPI's demurrer is based on the ground that this was a claim that was required to be brought as a compulsory cross-complaint in the prior action entitled Mas...

Excerpt: ...y law. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) Defendant Sanjot Singh Kang did not file an opposition and has not waived the error. (Cf. In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829.) The Court urges counsel for Plaintiff to confer with Defendant concerning a stipulation to transfer venue to Contra Costa County, since this case clearly does not belong in Alameda County unless Defendant wishes the case to remain here....

Excerpt: ...xt on the first page of the declaration containing the first 2 paragraphs of the declaration appears to be missing from the declaration. Second, Defendant has failed to protect the Plaintiff's personal identification information under California Rule of Court, Rule 1.201(a)(1). The Plaintiffs' social security numbers appear in multiple locations in the exhibits to the declaration. Defendant is to redact all references to Plaintiffs' social securi...

Excerpt: ...ndant County's demurrer to Plaintiff's First Amended Complaint ("FAC") on January 24, 2019 and granted leave to amend within 10 court days "following service of th[e] order as modified for method of service by CCP section 1013." (Order Sustaining Demurrer of 1/24/2019, p. 4.) The Order was then served by mail on February 7, 2019. (See Dec. Serv. By Mail re: Order After Hearing Re: of 1/24/2019, dated 2/7/2019.) In addition, Defendant County serve...

Excerpt: ...terials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged." (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817 (citing State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th at 656-657).) In the case of a motion to disqualify opposing counsel based upon the receipt of privileged material, disqualification is only ordered for prophylactic, not punitive, purpose...

Excerpt: ...on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) "Ultimately, disqualification m...

Excerpt: ...Defendants"). Defendants did not establish that it would be appropriate to stay this later-filed action pending the outcome of plaintiffs George C. McLauchlan and Karen L. McLauchlan's earlier-filed Illinois action. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574-575 [decision to stay is discretionary when actions are pending in courts of different states].) "A discretionary ruling on whether to stay must take into consideration matters outsi...

Excerpt: ...r the permitted time expired, and failed to provide the Court with a valid reason for the delay. Defendant has submitted evidence that Plaintiffs failed to timely file their FAC after Defendant's demurrer to the SAC was sustained, filing the FAC at least one week too late. (See Barlev Dec., para. 9; Def.'s Memo., p. 2:13- 20.) In response, Plaintiffs do not argue the FAC was timely filed, but instead attempt to persuade the Court to use its discr...

Excerpt: ...proper on their face. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Plaintiffs' Motion is GRANTED as to the specific costs challenged. Defendant cannot recover $3,788.61 in costs for depositions not used at trial and not necessary for protection of its rights -- namely, the depositions of Jody Pollak, Ava Lavender, Tanya Cagnolatti, and Julie Lanoff. (Code Civ. Proc. § 1033.5(a)(3)(A).) The "COR" bills from Compex are c...

Excerpt: ...ight have been inclined to award monetary sanctions. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-411 [belated response in face of imminent motion to compel does not deprive trial court of authority to rule on motion].) However, the various versions of Plaintiff's Complaint reveal that Defendant took out the loan at issue to attend law school. On its own motion, the Court takes judicia...

Excerpt: ...ints in (2) Alfaro v. Bay Area Diner, Inc., RG15797839, and (3) Benlamlih v. Bay Area Diner, Inc., RG15797841, assert at paragraph 25 that the plaintiffs were misclassified as an exempt employees. The answers filed in Alfaro and Benmilah do not assert the affirmative defense that plaintiffs are properly classified as exempt managers under Labor Code 515 and Wage Order 5 (8 CCR 11050). "Ordinarily, courts should 'exercise liberality' in permitting...

Excerpt: ... "for the purpose of determining the extent to which leave to amend should be granted as to the Sixth Cause of Action, as requested by Plaintiff Ashley Stewart ('Plaintiff')"; and (3) an order on May 10, 2019, continuing the hearing to May 24, 2019, "based on the emailed request from counsel for Plaintiff Ashley Stewart stating her inability to attend a hearing on May 10, 2019." The order of April 11, 2019, stated in part: "Prior to the hearing o...

Excerpt: ... Plaintiff alleges that its landlord "was threatening to charge Plaintiff $400,000.00 to clean up the Property." (See Complaint, paragraph 12.) But Plaintiff does not allege that its landlord in fact charged Plaintiff $400,000, or any other amount, as a result of Defendant's alleged failure to fulfill its obligations under the parties' contract, or any other facts demonstrating how Plaintiff has been damaged by that breach. The Demurrer to the Se...

Excerpt: ...s directed to serve its verified supplemental responses no later than May 28, 2019. If, after reviewing those verified supplemental responses, Plaintiffs believe they are inadequate, counsel for Plaintiffs and Defendant are ordered to meet and confer, in person, to attempt to resolve any disputes about those responses. If counsel are unable to informally resolve any disputes about the supplemental responses, they are directed to file a Joint Stat...

Excerpt: ...vil Procedure section 2020.420.) In addition, to the extent that Mr. Richards is willing to assume responsibility for copying the responsive documents, any copying would have to take place at Mulch Master's business address, not at the office of Plaintiff's counsel. (See The Rutter Group's Civil Procedure Before Trial section 8:547.2.) Plaintiff has also failed to demonstrate good cause for production of the documents requested in the subpoena (w...

Excerpt: ...d to a prevailing party must be incurred by that party, must be "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation," and must be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3); Charton v. Harkey (2016) 247 Cal.App.4th 730, 743.) Further, the language of the Civil Code section 1794 provides for recovery of both "costs" and "expenses" for claims under the Song-B...

Excerpt: ... assert (1) that the disciplinary proceedings subsequent to the Court's writ lacked evidentiary support and (2) that the resulting sanction of dismissal was an abuse of discretion. These objections are OVERRULED WITHOUT PREJUDICE. When the respondent holds further proceedings in response to a writ and the Court must review the record of those proceedings to determine compliance, the appropriate procedure to challenge those proceedings is to comme...

Excerpt: ...See CCP § 395(a). However, if there is more than one correct venue, Plaintiffs are entitled to select the one they prefer. Defendant's motion is denied because it did not rebut Plaintiffs' claim that it is a foreign corporation and that it has not designated a principal office in California in documents filed with the California Secretary of State. According to Easton v. Superior Court (1970) 12 Cal.App.3d 243, 246-247, cited by Plaintiffs, the ...

Excerpt: ...ear to have complied with this Court's Case Management Order of April 27, 2018 to utilize best efforts to obtain new counsel. Defendant failed to appear with counsel at the Case Management Conference of June 14, 2018. Defendant failed to appear at all at the Case Management Conference of October 3, 2018. According to Plaintiff's evidence, Defendant has failed and refused to provide available deposition dates for Defendant's chief executive. Defen...

Excerpt: ...re had until August 30, 2018 to file and serve the First Amended Complaint. On November 13, 2018, Plaintiff filed an Application for an Extension of Time to File the First Amended Complaint. Plaintiff mentioned in the application that Defendant had previously granted him extensions on an informal basis. The Court denied the application on November 16, 2018. Plaintiff's late First Amended Complaint filed more than six months after the Court grante...

Excerpt: ... party in time to defend an action. (CCP §473.5.) Relief under §473.5 must be sought within a "reasonable time," not to exceed two years after entry of default judgment. A motion for relief under CCP §473.5 must show the lack of actual notice was not due to the party's avoidance of service or inexcusable neglect. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) The court finds that the declaration submitted by Sparx 7, LLC managing member...

Excerpt: ...rt, Case No. RG18933394, be consolidated with Golden State Lumber, Inc. v. Burns, et al., Alameda County Superior Court, Case No. RG18921206 for all purposes. IT IS FURTHER ORDERED THAT all future filings shall be in this action, Golden State Lumber, Inc. v. Burns, et al., Alameda County Superior Court, Case No. RG18921206. "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial...

Excerpt: ... arises from a dispute between Plaintiff against his landlords, Defendants Khaled Saeed and Leitaled Saeed (collectively, "Defendants"), concerning a fire that occurred on the property where he resides, located in Oakland, California (the "Property") on January 26, 2017. (Compl. ¶¶ 1-2, 13.) Plaintiff seeks an order compelling Defendant Khaled Saeed and his insurance carrier, State Farm, to produce certain unredacted documents identified on the...

Excerpt: ...g 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 respondent to arbitra...

Excerpt: ...ber 19, 2016. Plaintiff Lai dismissed his claims without prejudice on August 11, 2017. In April 2017, Plaintiffs substituted Defendant Kam Hung Fong, Lisa Fong's former spouse, in the place of DOE 1. Plaintiffs then added Defendants Angela Fong and Bobby Fong in the place of DOE 2 and DOE 3, respectively, on December 26, 2017. Defendants have met their initial burden of making a prima facie showing that no triable issues of material fact exist an...

Excerpt: ...r the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code sec. 1794(a).) "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover...

Excerpt: ...e action." (CCP sec. 428.50(c); see also CCP sec. 428.10 [setting forth the types of causes of action that can be asserted in a cross-complain].) Here, the interests of justice do not support allowing Defendant to file a cross- complaint at this time. Defendant seeks to add third parties to the action as cross- defendants. (See Exh. A to Tong Dec.) "A greater showing of 'interest of justice' is required to obtain leave to file a cross-complaint a...

Excerpt: ...e action." (CCP sec. 428.50(c); see also CCP sec. 428.10 [setting forth the types of causes of action that can be asserted in a cross-complain].) Here, the interests of justice do not support allowing Defendant to file a cross- complaint at this time. Defendant seeks to add third parties to the action as cross- defendants. (See Exh. A to Tong Dec.) "A greater showing of 'interest of justice' is required to obtain leave to file a cross-complaint a...

Excerpt: ...r the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code sec. 1794(a).) "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover...