Excerpt: ... only, as unopposed. (See opposition brief at page 8:1-6.) The demurrers to the First Cause of Action for Breach of Settlement Agreement, the Second Cause of Action for Violation of Business & Professions Code § 17500, the Third Cause of Action for Violation of Business & Professions Code § 17200, the Fifth Cause of Action for Fraud, the Eighth Cause of Action for Declaratory Relief are all OVERRULED. As to each of these claims, DCG argues that...

Excerpt: ...Intentional Infliction of Emotional Distress; the Fourteenth Cause of Action for Negligent Infliction of Emotional Distress; the Fifteenth Cause of Action for Declaratory Relief; and the Sixteenth Cause of Action for Fraudulent Conveyance. The basis for Piterman's motion is Section 11/5/1 of the Operating Agreement for KD Pebble LLC ("the Agreement"), which provides that any action to resolve any claim arising out of or related to the Agreement s...

Excerpt: ...nce policies such as the one he wrote for Plaintiff. Plaintiff alleges that Defendant Slaughter knew the property for which she sought insurance was used in her photography business, and also knew, based on training provided by CSAA and his knowledge of CSAA's underwriting rules, guidelines, and forms that he needed to include an additional form to the policy to insure business property for an amount in excess of $2,500. Plaintiff alleges that De...

Excerpt: ...pervision), the Fourth Cause of Action for Violation of Code of Civil Procedure § 1159 (Forcible Entry), the Fifth Cause of Action for Trespass, and the Sixth Cause of Action for Nuisance are all SUSTAINED, WITHOUT LEAVE TO AMEND. Each of these causes of action is premised on the theory that Plaintiff Jamal Mansuri ("Plaintiff") had a leasehold interest in the business he operated at the El Cerrito Plaza BART station. But as Plaintiff's counsel ...

Excerpt: ...500.000 for the class and an additional up to $12,000,000 in fees and costs for counsel, for a potential total of $96,500,000. There will be no service awards for the named class representative. $500,000 is allocated to settlement administration costs. The settlement was mediated with the assistance of Judge Maria Elena-James (Ret). The court gives "considerable weight to the competency and integrity of counsel and the involvement of a neutral me...

Excerpt: ...at customer left the meat department at 12:12 p.m., and Plaintiff slipped in the sugar 22 seconds later. (See Safeway's Separate Statement Facts ("SSF") Nos. 3-6 and the evidence cited in support.) Where, as here, a plaintiff relies on a property owner's failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing the owner had notice of the defect in sufficient time to correct it. (See, e.g., ...

Excerpt: ... of action. A. Legal Standard for Summary Judgment A motion for summary judgment shall be granted if all the papers submitted show that 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...

Excerpt: ...of Justice, by January 24, 2020. At the debtor's examination held on October 29, 2019, Rajesh Puri ("Puri") appeared for Judgment Debtor Yaana. Puri did not produce documents sought by MacFarlane and refused to answer numerous questions. MacFarlane seeks an order scheduling a further debtor's examination, to compel Yaana to produce additional documents, as set out in the Separate Statement of Items in Dispute at the examination, and to compel Yaa...

Excerpt: ...t made the required affirmative showing of good cause necessary to continue the trial date. (See Cal. R. Ct., Rule 3.1322(a) ["[T]he dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain."]; Cal. R. Ct., Rule 3.1322(c) ["[C]ontinuances of trials are disfavored[.]"].) Among other things, the present trial date in this action was set on April 17, 2019, and Defendants have not demonstrated to ...

Excerpt: ...Ply Gem's motion is not properly before the court because the parties stipulated that discovery disputes would be heard by Bruce Edwards, as discovery referee, first, before seeking relief from the court. Plaintiff cites a Stipulation filed May 15, 2019, appointing Bruce Edward of James as Case Administrator/Discovery Referee ("Referee"). The Stipulation states that the duties and powers of the Referee will be determined by agreement of the parti...

Excerpt: ...otkin, and Gary Plotkin (collectively, "Survival Action Plaintiffs") are GRANTED WITHOUT LEAVE TO AMEND. Defendants' Motions for Judgment on the Pleadings re: Plaintiffs' Tenth Cause of Action for Intentional Infliction of Emotional Distress in TAMC as Adopted by Plaintiffs Benjamin Langfur, Adam Kennon, Samuel Maxwell, Andrew Ruiz, Michael Russell, Anthony Perrault, Sadao Dennis, Jose Avalos, Carmen Brito, and Nicole Kelber (collectively, "Indiv...

Excerpt: ... products manufactured or supplied by defendants, including A-L. Decedent was allegedly exposed to asbestos because of asbestos dust carried home on the clothing of his parents, Jorge and Alysa Perreras. For the reasons discussed below, A-L's motion is GRANTED as a motion for summary judgment, and A-L is ordered to prepare a proposed judgment of dismissal. LEGAL STANDARDS The purpose of summary judgment and adjudication procedures is to allow thi...

Excerpt: ... conditional class certification for purposes of settlement. Plaintiffs also seek court approval of claims raised under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Labor Code §§ 2698 et seq.). This motion was set for hearing on October 30, 2019, but was continued to this date to allow the parties an opportunity to address concerns with the form of notice and contents of the proposed settlement agreement. The parties have subm...

Excerpt: ...d the PARTIES ARE ORDERED TO APPEAR. 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, 843.) A party may move for summary ad...

Excerpt: ...ter. Plaintiff has objected to the video and screenshots based on lack of foundation and proper authentication. That objection appears to be meritorious. Safeway's counsel Kerri Johnson fails to establish any personal knowledge that the video and screenshots attached to her declaration accurately reflect the accident scene at the time indicated. The fact that the video and screenshots were produced in discovery is not sufficient to support their ...

Excerpt: ...sul has not filed opposition to BART's motion for terminating sanctions scheduled for December 13, 2019. The ruling on the motion for terminating sanctions may moot this motion for summary judgment/summary adjudication. The motion for summary judgment against Plaintiffs Russell Stapp, Patricia Stapp, and Amanda Stapp (collectively "Plaintiffs" unless otherwise indicated) is DENIED. In this action, Plaintiffs allege that on April 22, 2017, they we...

Excerpt: ...") of DEHP. Plaintiff asserts that Defendant's products as tested contained substantially more than 1,000 ppm of DEHP. Defendant also agrees to provide a warning if its reformulated products contain more than 1,000 ppm of DEHP. The parties have not reached agreement with regard to the presence of nickel and lead in Defendant's products, or Defendant's alleged failure to provide the required warning, so Plaintiff is deemed to have withdrawn the cl...

Excerpt: ...s by appearing and arguing the merits of the motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Plaintiff contends that the motion was filed without a declaration and there are no exhibits. However, counsel has now filed a Declaration on Form MC-052, and there is no requirement for exhibits. Counsel has provided a sufficient basis to withdraw based on Plaintiff's failure to pay her monthly installment fees over a period of months. Plainti...

Excerpt: ...overnment Code section 820.2, "a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him...." BART moves to bifurcate the trial of its immunity defenses under section 845 and 820.2 from the trial of BART's liability. Under Code of Civil Procedure section 598, the court may order the trial of one issue to be held before the trial of any ...

Excerpt: ...me Property Purchase Agreements and Joint Escrow Instructions ("the Agreements") with Defendants, both dated December 11, 2017, for the purchase of real property located at 1241 International Boulevard and 1301 International Boulevard in Oakland. The parties soon became embroiled in a dispute concerning whether Plaintiffs had made their initial contract deposits in a timely fashion. Defendants attempted to cancel the escrows for both properties, ...

Excerpt: ... Plaintiff alleges that Fischer was his realtor in that transaction. On February 27, 2017, Plaintiff signed an Exclusive Buyer Representation Agreement ("the Agreement") that provides, at Section 9(B), that it "shall be governed by and interpreted in accordance with the laws and in the courts of the state of Tennessee." Although a forum selection clause does not, ipso facto, defeat jurisdiction, it is one factor to consider in determining whether...

Excerpt: ...of consortium. The Complaint also demands punitive damages. Four of the Complaint's causes of action are brought against the moving Defendant: negligence, strict liability, negligent misrepresentation, and fraud by nondisclosure. Defendant now seeks to summarily adjudicate the causes of action for negligent misrepresentation and fraud by nondisclosure. Defendant also seeks to summarily adjudicate Plaintiffs' request for punitive damages. Defendan...

Excerpt: ...omplaint fails to state a cause of action upon which relief can be granted against Defendant Ukoha-Ajike. (See CCP § 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] given."].) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal....

Excerpt: ... 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] given."].) "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 actio...

Excerpt: ...ersonal representative of the Estate of Eugenie VanMiller, or both. If Plaintiff is asserting her negligence claim as a survival claim on behalf of the Estate of Eugenie VanMiller, Plaintiff must comply with Code of Civil Procedure section 377.32. Likewise, if she is asserting her elder abuse claims on behalf of the Estate of Eugenie VanMiller pursuant to Welfare & Institutions Code section 15657.2(d)(1), she must expressly allege that she is the...

Excerpt: ...s complaints of the flooding of the whole block of Ocean Avenue, which he purports is due to the upward slanting of Vallejo Street. (FAC ¶ 1.) Plaintiff claims that as a result, the foundation of his home has been undermined and his property has been deemed unfit for habitation. (Id. ¶ 4.) Plaintiff asserts that Defendant has intentionally or negligently failed to relieve the flooding in the area by failing to install a dedicated storm drain. (...

Excerpt: ...ighland Hospital to visit Naomi Schneider, the mother of Mira and Lia, on March 24, 2019. Plaintiffs do not allege that Germon was a patient or hospital employee. Instead, Plaintiffs simply allege on information and belief that Germon had been "in the hospital at some point prior to the attack." Plaintiffs claim that Defendant is liable for their injuries, including their severe emotional distress, because it did not take the measures necessary f...

Excerpt: ...ions in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in te...

Excerpt: ...Act of 2004 ("PAGA") (Lab. Code § 2698 et seq.). Plaintiff's attorney represented that a copy of this motion was transmitted to the LWDA on October 4, 2019. (Declaration of Justin F. Marquez ["Marquez Dec."] ¶ 8, Ex. B.) The LWDA has not appeared in this action to offer comments on, or objections to, the proposed settlement. In her First Amended Complaint, Plaintiff also purports to state individual claims for violations of various Labor Code s...

Excerpt: ...nstrate any delay in prosecution by Plaintiffs. Assuming arguendo that the Court has the "inherent authority" to dismiss a case for other reasons, in the absence of a motion based on established statutory procedures such as, e.g., a motion for summary judgment or demurrer, the Court declines to exercise that inherent authority in this case. Even if the Court were inclined to exercise its inherent authority to consider dismissing this case in the ...

Excerpt: ...en." (Cal. Rules of Court, Rule 2.550(c).) "The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) [t]here exists an overriding interest that overcomes the right of public access to the record; (2) [t]he overriding interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) [t]he proposed sealing is...

Excerpt: ...wever, the Court is not convinced that satisfactory amendment in regards to punitive damages is not possible. Accordingly, as to the Moving Defendants, the motion to strike is GRANTED WITH LEAVE TO AMEND. Plaintiffs must file an amended complaint no later than January 2, 2020. "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: . . . [s]trike out any irrelevant, false, or improper matter inserted ...

Excerpt: ...mercial Code § 2725(2) is without basis. Judgment Debtor's argument is based on the answer given by the jury in response to question 6.g. of the Special Verdict. Judgment Debtor would have the Court draw an inference that the jury made a finding about when the claim for breach of express warranty arose based on its answer to question 6.g. There is no factual basis to draw this conclusion. The law states that the warranty claim accrued when it be...

Excerpt: ...ntify Plaintiff and Plaintiff does not allege facts showing that members of Ace who did not already know about the incident would have been able to identify her as the member "yellow carded" based on a complaint for battery. In addition, Plaintiff alleges that she made contact with "Individual 1" during the incident, and she acknowledges that she was angry when she did so. Plaintiff alleges that she was defending herself, but the facts alleged st...

Excerpt: ...ter; (B) The award of attorney's fees is reasonable under California law; and (C) The penalty amount is reasonable under in light of the section 25249.7(b)(2) factors. More generally, the Court must ensure the parties' settlement "serves the public interest." (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 62.) CEH set several motions for 12/3/19 regarding Proposition 65 claims involving acrylamide. CE...

Excerpt: ...ther the amount sought is reasonable. See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1133 (manner of calculating fees); and Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-818 (same). When the billing records were received in advance of the July 2019 hearing, the Court noted that Plaintiff made extensive redactions without seeking court approval under Rules of Court 2.550 and 2.551. Plaintiff now asks...

Excerpt: ...sufficient to constitute a defense to the complaint." (CCP § 438(c)(1)(A).) "A motion by a plaintiff for judgment on the pleadings is in the nature of a general demurrer to the answer, and the motion must be denied if the answer raises a material issue or sets up affirmative matter constituting a defense." (Barasch v. Epstein (1957) 147 Cal. App. 2d 439, 442.) "Where the answer, fairly construed, suggests that the defendant may have a good defen...

Excerpt: ...rmed of the risks he would have consented even if a reasonably person in plaintiff's position might not have consented." Plaintiff does not oppose the addition of the 11th Affirmative Defense. Defendants also seek to add a 12th Affirmative Defense that "The defendants expressed opinions regarding the treatment and procedures relying on their judgment and disclosed the important potential results and the risks of the procedures." Defendants conten...

Excerpt: ...efendant 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).) Here, Defendant has presented admissible evidence that Plaintiffs' cause of action for negligence is preempted by Federal Railroad Safety Act regarding the engagement of the emergency braking system and the horn war...

Excerpt: ...kland. Specifically, Plaintiff alleges that an air vent cover attached to the wall suddenly off the wall and hit her in the head, causing injury. Plaintiff alleges that Defendants RCB, Teresa Ceja, Kimberly Ceja, Fryda's Design, and Saint Jarlath Catholic Church ("St. Jarlath") negligently owned, controlled, supervised, managed, designed, constructed, maintained and operated the premises so as to allow a dangerous condition to exist on the proper...

Excerpt: ...ding actively discouraging meal breaks, and requiring off-the-clock work. (See, e.g., Complaint, paras. 60, 61.) Plaintiff's Complaint alleges a single cause of action under the Private Attorneys General Act ("PAGA"). Plaintiff's Complaint is brought on behalf of herself, other aggrieved employees, and the State of California. Plaintiff's Complaint seeks civil penalties, attorney fees, and interest from Defendants. (See Complaint, para. 33.) Plai...

Excerpt: ...LAINT Plaintiff Kathleen Reeves ("Plaintiff") brought this action based on allegations that Defendant Monica Leasure ("Leasure"), a receptionist at Plaintiff's law office, diverted Plaintiff's accounts receivable to herself using credit card and bank accounts in Plaintiff's name. Plaintiff contends that Defendant Carl Upthegrove ("Upthegrove"), whom Plaintiff contracted to check in on her office while she was being treated for medical issues, hel...

Excerpt: ...ith post concussive syndrome, depression, memory loss, problems with irritability and concentration sleep problems and tinnitus. Plaintiff further stated that he has post-concussive symptoms which ranged from ear noise, anxiety, depression, memory loss, irritability, concentration problems, anger, mood swings, sleep disturbance, flashbacks and vision problems. On March 6, 2017, plaintiff appeared for deposition and testified that he continues to ...

Excerpt: ...his disability. Plaintiff apparently has suffered from epilepsy for many years. Defendant discovered Plaintiff's condition when he asked for time off from work to deal with his symptoms. Plaintiff alleges that Defendant initially reduced his weekly hours from 40 to 24, and then later terminated his employment. The Court continued the hearing on Defendant's motion from October 1, 2019 to December 3, 2019 because the parties presented directly conf...

Excerpt: ...t made the required affirmative showing of good cause necessary to continue the trial date. (See Cal. R. Ct., Rule 3.1322(a) ["[T]he dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain."]; Cal. R. Ct., Rule 3.1322(c) ["[C]ontinuances of trials are disfavored[.]"].) Among other things, the present trial date in this action was set on April 17, 2019, and Defendants have not demonstrated to ...

Excerpt: ...5, 2019, when it should have been served by October 25, 2019), and filed an untimely reply brief on October 19, 2019. (People v. $17,522.08 United States Currency (2006) 142 Cal. App. 4th 1076, 1084 ["Both civil litigants and criminal defendants who represent themselves in the trial court are held to the same standards as are parties who are represented by counsel."]; Gamet v. Blanchard (2001) 91 Cal. App. 4th 1276, 1284 ["[P]ro per litigants are...

Excerpt: ...tion of Defendant's retained expert, Marco Schmidt, was scheduled to take place in Frankfurt, Germany, on November 22, 2019. Plaintiff's objection to the depositions of Kuhn and Eichhammer in Germany is sustained. Plaintiff argues that the notices are legally deficient because counsel for Defendant did not comply with the requirements for international discovery set forth in the Hague Convention or with German law. See CCP § 2027.010(c). The req...

Excerpt: ... merits of Moorpark's contentions. Also, the Court overrules Moorpark's procedural objections to Judgment Debtor Chunlei Leila Guo's opposition that he concedes he received eleven (11) court days before the hearing. See CCP § 1005(b) (opposition must be filed and served at least nine (9) court days before hearing). The Court has the discretion to consider late papers if the opposing party has not sustained undue prejudice. See Rule of Court 3.13...

Excerpt: ...ina Pet Salon, LLC's ("KPS, LLC") customers, (2) using KPS, LLC's confidential and proprietary information; and the Court also orders Defendant to (3) surrender and provide to Plaintiffs KPS, LLC and Francisco Reynoso the administrative passwords and any additional information that will enable them to gain control over KPS, LLC's social media, domain name and other online accounts, including but not limited to the domain name "https://katrinaspet...

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...