Excerpt: ... Complaint is currently pled, Plaintiff alleges both that Pettner was acting in the course and scope of his employment for Sutter (see Second Amended Complaint, paragraphs 6 and 28) and that he was not acting in the course and scope of employment (see Second Amended Complaint, paragraphs 17 and 29.) Those directly contradictory allegations make the First Cause of Action (and indeed, the entire Second Amended Complaint) uncertain and ambiguous. In...

Excerpt: ... received notifications from the City of Oakland to repair the premises but failed to do so. (See Complaint paragraphs 38-42.) Those allegations, if true, adequately support these causes of action. The demurrer to the Fifth Cause of Action for Breach of Contract is SUSTAINED, WITH LEAVE TO AMEND to attach Plaintiff's written lease as an exhibit to the Complaint or to allege the term(s) of the lease that Defendants breached. In the absence of such...

Excerpt: ...Investigation Report dated March 2, 2018, including the approximate 30,000 emails, near verbatim transcripts/notes of witness interviews invoices and a spreadsheet listing people who had access to the applicable facility, among other documents, no later than August 31, 2021, in order to provide a further opportunity for this defendant to eliminate the prejudice caused by this spoliation of evidence. Additionally, the court hereby sets an ORDER TO...

Excerpt: ...ng party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the final or...

Excerpt: ... Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff also did not clearly indicate whether it claims Defendants are liable for intentional misrepresentation, negligent misrepresentation, or concealment of material fact. If Plaintiff intends to base its claim on the false testimony of Defendants Eric and Jerry Tran during the depositions that were taken after the settlement agreement was executed in 2018, it must all...

Excerpt: ...her, that Exhibit C to that declaration may have been forged by defendant Ozluk in order to increase his apparent capital contribution to the LLC. The court lacks sufficient information and evidence (for example, a sworn declaration or deposition testimony by the purported author of the document) to conclude the document is a forgery. Accordingly, Plaintiff's motion for an order finding defendant Ozluk in contempt is denied, without prejudice. Pl...

Excerpt: ...ant Timothy Low, whose claims appear to be barred by the Government Tort Claims Act. The causes of action related to Mr. Low do not demonstrate either a special relationship, or a mandatory duty to disclose, either by statute or in common law. The claims are similar to Plaintiff's unsuccessful request for adjudication of its claims based on a failure to disclose raised in Plaintiff for Motion for Summary Adjudication, which this court denied. (Va...

Excerpt: ...Rey (2014) 223 Cal.App.4th 221, 236.) Defendants shall file and serve an Answer to the Complaint no later than Friday, August 6, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, July 16, 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 Jean...

Excerpt: ...ocedure section 128.5. In their briefing on the motion for judgment on the pleadings, neither side was able to cite a published case squarely on point as to whether a product that did not itself contain a chemical regulated by Proposition 65, but that could foreseeably be used with a substance containing such a chemical, was subject to Proposition 65. In the absence of any such directly applicable legal authority, the Court does not find that Pla...

Excerpt: ...ions under 21 CFR § 898.12 and whether Defendants subjected Plaintiff to an adverse employment action because he raised these concerns. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, July 27, 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 J...

Excerpt: ...aims are stayed pending resolution of his individual wage and hour claims. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, July 20, 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...

Excerpt: ...whether Defendant's alleged violations of the Song-Beverly Consumer Warranty Act, Civ. Code § 1790 et seq., (the "Lemon Law") were "willful." ANALYSIS OF MOTION The Court GRANTS the MTC with respect to RFPD No. 7 but limits the request for "Warranty Policy and Procedure Manuals" to the time period from 1/1/2018 to 6/25/2020, the last date on which Plaintiff sought warranty repair work. (See Moving Gi Dec. ¶ 19.) The Court GRANTS the MTC with re...

Excerpt: ...;" and (2) "the information to be gained from the deposition is not available through any other source." (Contractor's State Licence Board v. Sup. Ct. (2018) 23 Cal.App.5th 125, 132 ("CSLB"); see also Board of Dental Examiners v. Sup.Ct. (1976) 55 Cal.App.3d 811; People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804, 826-827.) Plaintiff has failed to submit sufficient competent evidence to meet his burden. The Court ORDERS Plaintiff to pay Def...

Excerpt: ...ntiff's successor in interest within the meaning of CCP § 377.11. Further, causes of action sounding in wrongful death survive the death of the original decedent's successor in interest. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1444.) This tentative ruling will automatically become the Court's final order on Tuesday, July 27, 2021 unless, by no later than 4:00 p.m. on Monday, July 26, 2021 a party to the action notifies both (1) the Cour...

Excerpt: ...tion on the ground that it was filed well after the initial 60-days after the initial cross-complaint was served. Cross-Complainant argues that the First Amended Cross-Complaint filed on April 22, 2021, did not contain new causes of action and is sufficiently similar to the original cross-complaint filed on Mary 21, 2018 so that the court should consider the anti-SLAPP motion as untimely. The court agrees. Typically, an anti-SLAPP motion must be ...

Excerpt: ...September 25, 2019. See Labor Code § 2699. Plaintiff alleges in the Complaint that Defendant engages in the following practices that violate the Labor Code: (1) Defendant fails to authorize and permit its non-exempt security officers to take meal and rest breaks; (2) Defendant fails to pay its non-exempt security officers at a premium rate for working through their meal and rest breaks; (3) Defendant fails to provide its non-exempt security offi...

Excerpt: ... 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 defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) For the Court to grant leave to amend after sus...

Excerpt: ...sentation. The Court, therefore, concludes that further leave to amend will be futile. The Court OVERRULES the Demurrer to the TAC's Second Cause of Action for Declaratory Relief. The Green Defendants' contention that no present controversy exists between Plaintiff and the Green Defendants has no merit. The parties each have a conflicting judgment in their respective favors, and each side contends that the other party's judgment was procured by f...

Excerpt: ...emurrer as admitting 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 c...

Excerpt: ...s v. Sup.Ct. (1998) 66 Cal.App.4th 1217. Based on the record before the Court, the present facts appear most similar to those of Wellpoint Health Networks. Nevertheless, the Court is reticent to order the production of documents that may, in fact, be protected from disclosure by attorney-client privilege. VDM's privilege log fails to contain sufficient factual information to allow Plaintiff to evaluate the merits of VDM's claims of attorney-clien...

Excerpt: ...ust email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. If not timely contested, and the tentative ruling will become the final order of the Court. Mr. Richards was a pipe-fitter for more than thirty years. During that time, he worked with many different asbestos-containing products. He now suffers from pleural mesothelioma. Plaintiffs name more than 100 different...

Excerpt: ...two of the four causes of action in WM's First Amended Complaint. The Court rejects EMBUD's argument that the discovery at issue is either burdensome or oppressive. A party seeking relief from discovery based on burden must submit evidence showing the quantum of work required to respond to the discovery, and a party seeking relief based on oppression must show an intent to create an unreasonable burden or that the effect of the burden is incommen...

Excerpt: ...ile an administrative charge with the DFEH alleging any harassment by Leung, as required by Government Code § 12960. (See Medix Ambulance Service Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 115-118.) Although Plaintiff's DFEH charge did mention Leung by name, it neither alleged that Leung was her employer, nor that Leung had harassed her, nor that Leung was the perpetrator of the harm suffered by Plaintiff. Therefore, Plaintiff's DFEH char...

Excerpt: ...ing that is the subject of this lawsuit, video surveillance of the events leading up to and including the shooting, and police interviews with eyewitnesses including Defendants' employees.) It is fairly clear why those documents and recordings - if they all actually exist - would contain facts necessary for Plaintiff to oppose this motion. The Court's discretion in whether to grant a continuance should usually be exercised in favor of granting th...

Excerpt: ... medical marijuana ID card at the time of the collision. (See SROG Nos. 60-67). Plaintiff also seeks to discover the identity of healthcare providers who may have prescribed Plaintiff medical marijuana within the last ten years. (SROG Nos. 68-70.) Defendant is in possession a one-page medical record dated March 16, 2020 in which Plaintiff's medical provider noted in the "Social History" section of the document that Plaintiff was a "daily smoker [...

Excerpt: ...ges that on October 18, 2016, she was followed to her home in Fremont by a former employee of Defendant, Barry Heisner, and attacked and robbed as she attempted to enter her home. Plaintiff had been playing cards at Bay 101 for several hours before leaving the casino at around 1:00 a.m. Defendant Heisner, who had been terminated as a card dealer in March 2016 for unrelated job performance reasons, was prohibited from entering the premises after D...

Excerpt: ...tion on the ground that it was filed well after the initial 60-days after the initial cross-complaint was served. Cross-Complainant argues that the First Amended Cross-Complaint filed on April 22, 2021, did not contain new causes of action and is sufficiently similar to the original cross-complaint filed on Mary 21, 2018 so that the court should consider the anti-SLAPP motion as untimely. The court agrees. Typically, an anti-SLAPP motion must be ...

Excerpt: ...t (1998) 67 Cal.App.4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as ...

Excerpt: ... 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 plaintiff or plaintiffs." (C...

Excerpt: ...any time prior to trial. See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108. Cross-Defendant's motion is not an untimely and defective motion for reconsideration of the Court's ruling of May 27, 2020. The Court specifically granted Cross-Defendant leave to make the request when it denied its earlier motion. Based on its review of the parties' written submissions, the Court declines to grant Cross-Defendant leave to proceed with its second motio...

Excerpt: ... L-2", this claim fails as a matter of law because the City is not liable for common law negligence. (See Government Code § 815(a).) As to "Count 2 - Willful Failure to Warn" in "Prem. L- 3", this claim fails because Plaintiff does not allege or present any evidence demonstrating that she was using the subject premises for recreational purposes, as required for liability under Civil Code § 846. As to "Count Three - Dangerous Condition of Public...

Excerpt: ...s so "frivolous" as to warrant the imposition of sanctions under Code of Civil Procedure section 128.5. As the Court indicated in its May 31, 2021 order, Plaintiff may potentially have claims against the Banks based on the 2014 settlement of one of his six prior cases against the Banks, but those claims were not alleged in his First Amended Complaint in this case and should be brought, if at all, in the action in which the settlement was reached....

Excerpt: ...urth Floor), 1221 Oak Street Oakland. Plaintiff's counsel provide an estimate of 566.3 hours of work on this case, which seems unusually high for a relatively straightforward PAGA action, supported only by declarations conclusorily alleging that these hours were reasonably and efficiently incurred. Although hourly billing entries are not generally required in the context of a settlement motion, the Court is unwilling to approve an attorney fee aw...

Excerpt: ...ng a complaint on demurrer is long-settled: "We treat the demurrer as admitting 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.) REQUESTS FOR JUD...

Excerpt: ...ming arguendo that Puls' written lease contains such a provision, Plaintiffs allege that Manley occupied the subject premises beginning in 2014 with the knowledge and consent of the premises' prior owners. (See First Amended Complaint, paragraphs 2 and 38.) If true, those allegations may support a waiver of any alleged requirement of the prior premise owner to approve Manley's tenancy in writing. (See, e.g., Wind Dancer Production Group v. Walt D...

Excerpt: ...) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in the...

Excerpt: ..., the amount of $15,590. Nevertheless, Dimco still fails to establish that the total amount that it potentially owes to the other claimant parties in this lawsuit is only $56,650. Instead, each of cross- complainants Flock Freight Inc. ("Flock"), Choptank Transport, Inc. ("Choptank") and Mode Transportation LLC ("Mode") appear to have separate and distinct claims for money damages against Dimco for unpaid shipping services each of Flock, Choptank...

Excerpt: ...hem. (See Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236.) Defendants shall file and serve an Answer to the Complaint no later than Friday, August 6, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, July 20, 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 w...

Excerpt: ...oner argues that he did not refuse to complete a chemical breath test; instead, he was simply "unable" to complete it. For the purposes of this writ, that distinction makes no difference. Vehicle Code section 13353(a) provides for a one year license suspension for any driver who either refuses to submit to a chemical test or who "fails to complete" it. It is undisputed that Petitioner failed to complete the breath test. (See Garcia v. Department ...

Excerpt: ...causes cancer or reproductive toxicity or that they necessarily emanate any such chemicals. Rather, Plaintiff alleges that Defendant's products, if used with marijuana, produce marijuana smoke, which is a carcinogen regulated by Proposition 65. Plaintiff does not allege that the Defendant's products can only be used with marijuana, or that their use with other substances emanates any carcinogen subject to Proposition 65. Plaintiff cites no case h...

Excerpt: ... 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 evidence would allow a reasonable trier of fact to find the underlying...

Excerpt: ... no later than 4:00 p.m. on Monday, July 12, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, July 14, 2021 at 1:30 p.m. or at a subsequent date ...

Excerpt: ... cleared. Mr. Beltran, offered to have Santiago Hernandez assist with trimming trees because had experience trimming trees and tools, and Mr. Tuomey agreed. (AR:0131-0132.) On May 21, 2016, Santiago Hernandez was seriously injured while working to remove the trees. (Administrative Record Pages ("AR"): 118:7-119:14; 131:21-132:4.) Mr. Hernandez was not licensed by the California Contractors State Licensing Board as a tree trimmer and Mr. Tuomey wa...

Excerpt: ...ll documents related to the company's preparation of its proposal to the City for the Residential Recycling ("RR") contract in 2015. The parties advise that the City began the process of soliciting proposals from companies interested in providing recycling and waste collection services in 2012. The objection of CWS that the request is overbroad and seeks information that is not relevant to the subject matter of this action is overruled. The infor...

Excerpt: ...4.) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (CCP §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate and which no statute has made arbitra...

Excerpt: .... v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (CCP §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies which they have not agreed to ...

Excerpt: ...intiff) and Neutron. The Court further ORDERS the present action STAYED pending completion of arbitration proceedings. This tentative ruling will automatically become the Court's final order on Tuesday, July 20, 2021 unless, by no later than 4:00 p.m. on Monday, July 19, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is co...

Excerpt: ...ood faith has the effect of discharging the settling defendants' obligations to any remaining defendants in contribution or equitable indemnity. (See CCP § 877.6(a), (c).) The burden of proof lies with the party asserting that the settlement is not in good faith. (CCP § 877.6(d).) A settlement is in "good faith" if it is within the "reasonable range"-that is, "within the ballpark"-of the settling tortfeasor's share of liability for the plaintif...

Excerpt: ...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 properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which ju...

Excerpt: ... Plaintiff-in- Intervention Chubb filed a notice of lien related to is worker's compensation policy for amounts paid related to the same accident. On March 17, 2020, Defendants settled their claims with Plaintiff Hammond, which included a negligence cause of action. Defendants now demurrer to the First Amended Complaint-in-Invention on the grounds that since the negligence cause of action has been dismissed from the Complaint-in-Intervention, tha...