Excerpt: ...n to Strike as to Plaintiff's third cause of action for abuse of process, but overruled Defendants' demurrer to the FAC's first, second and fifth causes of action (the "defamation related claims"), as well as the fourth cause of action for IIED. Defendants appealed. The court of appeal found that Plaintiff's claim for abuse of process was properly stricken, but his defamation related claims and IIED claim had at least minimal merit, and should no...

Excerpt: ...dds allegations regarding all of the Defendants save Kaiser Foundation Hospitals, Defendants are required to file amended answers. Defendants shall respond to the TAC, after it has been served, as provided by the Code of Civil Procedure. IT IS FURTHER ORDERED that Defendant Permobil, Inc.'s ("Permobil") motion for summary judgment or summary adjudication, which is based on Plaintiff's Second Amended Complaint ("SAC") and is currently scheduled to...

Excerpt: ...430.30(a); and Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152 (facts subject to judicial notice may disclose existence of defense). The Court hereby takes judicial notice of Plaintiff's initial Complaint and its order sustaining Defendant's Demurrer to the Second, Third and Fourth Causes of Action in the initial Complaint with leave to amend. See Evidence Code §§ 452 and 453. Plaintiff Monterrosa alleges that he is a Hispani...

Excerpt: ...lso been assigned by its insured claims against Defendants for reimbursement for damages caused by Defendants to a motor home rented by the insured to Defendants. LEGAL STANDARDS "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 assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those...

Excerpt: ...el Newman (collectively, "Plaintiffs") brought this action against Defendant concerning its obligations under the written warranty it issued for a vehicle purchased by Plaintiffs in November 2012. Plaintiff alleges that Defendant breached the express warranty and implied warranty of merchantability by knowingly delivering a vehicle with serious defects and nonconformities, which later developed other serious defects and nonconformities, including...

Excerpt: ... CCP sec. 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...

Excerpt: ...EAVE TO AMEND. Plaintiff alleges that while she was at a Kaiser facility for a medical appointment, she was sexually assaulted by Defendant Efrain Castanon, a medical assistant. Based on the allegations in the First Amended Complaint, TPMG is not vicariously liable for its employee Castanon's sexual battery as a matter of law because his actions were beyond the scope of his employment. (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital (...

Excerpt: ...ity to reform a written contract "[w]hen, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties." (Civ. Code § 3399.) UC's first cause of action alleges that "the Covenants contain or seek to impose restrictions and criteria that do not truly express the intention of the parties given the passage of time si...

Excerpt: ...ould be published in the City's voter information pamphlet, which the City distributes to eligible voters in connection with the Election. Plaintiff alleges that on October 27, 2018, he discovered that the qualifications statement that he submitted had not been printed verbatim in the City's voter information pamphlet. Plaintiff's SAC alleges three causes of action for (1) damages and injunctive relief for Defendants' alleged failure to discharge...

Excerpt: ...CNCG has not established that it has the capacity to sue and be sued in its own name. Second, OCNCG has not shown that it has a direct and immediate interest in this litigation such that its members stand to gain or lose by direct legal operation and effect of a judgment in this action. Living near a proposed construction project is not a direct and immediate interest in a lawsuit, without some connection to the project or the land on which it si...

Excerpt: ... "SB 35"). The Court entered judgment on November 19, 2019. Respondent the City of Berkeley and intervenors the Confederated Villages of Lisjan oppose Petitioners' motion. For the reasons stated below, the motion is denied. 1. The Court Lacks Jurisdiction to Reconsider its Order but May Consider this Motion as a Motion for New Trial The Court entered Judgment in this case on November 19, 2019, while this motion was pending. Entry of judgment dive...

Excerpt: ...d 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.) Plaintiff's Complaint does not seek any indivi...

Excerpt: ...ard alleges that she was seriously injured in an accident caused by Austin Harris. Plaintiff alleges that Kimberly Harris is liable to her under a negligent entrustment theory. Although not explicitly stated, the parties have clearly conveyed to the Court the view of Defendants that Plaintiff is exaggerating the extent of her injuries and the limitations on her ability to work and engage in other life activities. In response to Plaintiff's form i...

Excerpt: ... Son Lee, et al. (RG19-036589) for all purposes. These four cases clearly involve common questions of law and fact. Indeed, the central issue in the third case mentioned above (Choe v. Lee), like the other three cases, is who (if anyone) is to blame for damages caused by the fire at the church. Choe's contention that he did not work on the church roof at the time of the fire is directly related to the claims that will be tried in the other three ...

Excerpt: ...s on August 13, 2019. Plaintiff timely filed his Motion to Strike and/or Tax Costs on August 28, 2019. Plaintiff's first contention is that the Court should not require him to reimburse Defendant's costs incurred in serving Subpoenas Duces Tecum for Plaintiff's records. Plaintiff claims that Defendants violated his right to privacy when they served their subpoenas. Plaintiff also claims that Defendants failed to comply with the statutory requirem...

Excerpt: ...1285.2(a)(4), in two ways. First, BAD argues that the arbitrators exceeded their power by awarding RGW for costs to complete "balance of 24 inch CIDH Piles", because (1) RGW had been the subcontractor listed to perform that work on Bid Item 111 and (2) Caltrans had determined on August 25, 2017 that RGW violated Public Contracts Code sections 4100 et seq. by substituting another contractor to do that work without Caltrans approval. Although Caltr...

Excerpt: ...rogatories, Set No. 1, which were originally served on Defendant on May 29, 2019. The date for Plaintiff's compliance with this Order is 10 days from the date of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. In regards to Special Interrogatory No. 2, Defendant's present response is inadequate, as Defendant has made an insufficient attempt to discern the information requeste...

Excerpt: ...n served, as provided by the Code of Civil Procedure; however, Defendant is not required to file an amended answer. Defendant's motion to compel arbitration is DENIED AS MOOT. MOTION FOR LEAVE TO FILE SAC "Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading. . . ." (CCP § 576.) Great liberality is afforded a plaintiff to file an...

Excerpt: ...ia Bar. (C.R.C. 9.40(a).) Hubbard is not a resident of the State of California. (C.R.C. 9.40(a)(1).) "'[R]esidence' connotes any factual place of abode of some permanency, more than a mere temporary sojourn. ... a person may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time." Smith v. Smith (1955) 45 Cal. 2d 235, 239. Hubbard met her prima facie burden by stat...

Excerpt: ...RULED. The Court agrees with the VC Stockholders that Plaintiffs have not alleged facts demonstrating that the VC Stockholders owed any fiduciary duty to the shareholders of Art.com, Inc. ("ART"). But Plaintiffs have alleged facts that, if true, may support a claim that the VC Stockholders aided and abetted in a breach of fiduciary duties by ART's board of directors. Under Delaware law, minority shareholders (as are each of the VC Stockholders) g...

Excerpt: ...s burden to show, for each cause of action, that "one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action." (CCP § 437c(p)(2); see Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220-221.) If the defendant has made this showing, the burden then shifts to the Plaintiff to show one or more triable issues of material fact. (CCP § 437c(p)(2).) "In order to...

Excerpt: ...ndependent contractors in violation of Labor Code section 226.8, failing to compensate its workers appropriately, and failing to permit appropriate meal breaks. (See, e.g., Complaint, ¶¶ 3, 47.) Plaintiff's Complaint alleges causes of action under the Private Attorneys General Act ("PAGA"). Plaintiff's Complaint is brought on behalf of himself, other aggrieved employees, and the State of California. (See Complaint, p. 1.) Plaintiff's Complaint ...

Excerpt: ...endants based upon Defendants' representation of Plaintiffs for applications for patents with the United States Patent and Trademark Office ("USPTO"), which resulted in the issuance of U.S. Patent No. 7,516,227 (the "'227 Patent") on April 7, 2009. Plaintiffs allege that Defendants also represented Plaintiffs in the subsequent amendments, corrections, and administrative challenges regarding the '227 Patent as late as February 18, 2016. Plaintiffs...

Excerpt: ... which would purportedly preclude Drivers from recovering anything and would cost Drivers their jobs. Plaintiffs contend that Defendants offered these Drivers less than what is being sought in this action and less than what certain drivers are seeking through arbitration. When Plaintiffs had discovered these communications in September 2019, they expressed to Defendants' counsel that such communications were inappropriate, but Defendants' counsel...

Excerpt: ...them to incur damages. Defendants failed to appear in the case. On 2/23/11, after a default prove-up, the court entered judgment for plaintiffs in the amount of $66,023.30. On 10/25/17, an abstract of judgment was issued. In 2017 and 2019, writs of execution were requested, and issued. Defendants seek to set aside the abstract of judgment and subsequent writs under CCP §473(d), on the ground that the 2011 judgment was void. CCP §473(d) provides...

Excerpt: ...ne, the decision of the arbitrator is final and "shall" be confirmed by the court upon the petition or motion of a party to the arbitration, subject to the narrow exceptions set forth in Code of Civil Procedure sections 1286 et. seq. (See Moncharsch v. Heily & Blase (1992) 3 Cal. 4th 1, 11-12.) Here, although they have opposed the petition, Defendants/Cross-Complainants Mark Gimle and Tina Gimle ("Defendants") have not identified an exception und...

Excerpt: ...se." (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.) DEMURRER Defendants demur to each of the FAC's two causes of action brought against the demurring Defendants. The court notes that although the caption on Plaintiff's SAC enumerates three causes of action, the body of the SAC contains onl...

Excerpt: ...ulings in the bankruptcy proceeding to defend against his claims in this action, but the judicially noticeable documents provided by Plaintiff do not support that conclusion. The bankruptcy estate waived the right to bring affirmative claims against HLF based on claims of malpractice, but the settlement is not reasonably construed as a waiver of AGLLC's rights to defend against claims by HLF to enforce its liens, which were excluded from the bank...

Excerpt: ...ded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) "...

Excerpt: ...that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Stru...

Excerpt: ...rceived disability, failure to accommodate, failure to engage in the interactive process, and failure to prevent discrimination. Cal. Govt. Code §12940. The claims went to a bench trial, which concluded on 8/21/2013. The DFEH prevailed on all causes of action except its claim for failure to engage in the interactive process and the court entered judgment in favor of the DFEH for $112,400. In its judgment, the court ruled the DFEH could seek its ...

Excerpt: ...ut in the parties' agreement." (Oct. 21, 2019 Statement of Decision at p. 1.) A court may only award attorneys fees where authorized by contract, statute or law. (CCP § 1033.5(10).) Plaintiff seeks attorney's fees based on her successful claim that Defendant John Searle breached the settlement agreement between the parties, which has a fee-shifting provision that states that: "In any dispute arising from this Agreement, the prevailing party shal...

Excerpt: ...ural history and facts of this case. The Complaint was filed on April 17, 2017. This case was assigned to Department 517 for all purposes on April 18, 2017. The Court presided over the 23-day jury trial that began in late August 2018 and concluded with a verdict in favor of the People on November 5, 2018. As counsel for the prevailing party, the Attorney General's Office is statutorily entitled to recover its reasonably incurred attorney's fees a...

Excerpt: ...ke is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendmen...

Excerpt: ...mplainants to perform improvements at the property located at 3525 Joaquin Miller Road, in Oakland. Cross-Defendant allegedly performed all or nearly all of the work before Cross-Complainants terminated him in December 2017 for failure to comply with the terms of the contract. Cross-Defendant submitted invoices to Cross-Complainants that total $276,808.87. Cross-Complainants paid Plaintiff $173,355.75. In their Fourth Cause of Action, Cross-Compl...

Excerpt: ... to one or more causes 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 ...

Excerpt: ...d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (e) Notwithstanding any other provision of law, the cour...

Excerpt: ...on raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) In addition, "[n]otwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preferenc...

Excerpt: ...ange Development Plan ("2020 LRDP"). The City opposes the motion to disqualify. For the reasons discussed below, the motion is DENIED. LEGAL STANDARDS The Court has the inherent authority to disqualify counsel in appropriate cases as part of its inherent power to control, "in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it . . . ." (Code of Civ....

Excerpt: ...them to incur damages. Defendants failed to appear in the case. On 2/23/11, after a default prove-up, the court entered judgment for plaintiffs in the amount of $66,023.30. On 10/25/17, an abstract of judgment was issued. In 2017 and 2019, writs of execution were requested, and issued. Defendants seek to set aside the abstract of judgment and subsequent writs under CCP §473(d), on the ground that the 2011 judgment was void. CCP §473(d) provides...

Excerpt: ...them to incur damages. Defendants failed to appear in the case. On 2/23/11, after a default prove-up, the court entered judgment for plaintiffs in the amount of $66,023.30. On 10/25/17, an abstract of judgment was issued. In 2017 and 2019, writs of execution were requested, and issued. Defendants seek to set aside the abstract of judgment and subsequent writs under CCP §473(d), on the ground that the 2011 judgment was void. CCP §473(d) provides...

Excerpt: ...otion on Ruiz and Lagorreta in the manner of a summons and complaint sufficiently in advance of the continued hearing date to comply with CCP section 1005(b). State Farm shall file a proof of service at least 5 court days before the continued hearing date. BACKGROUND/RECOMMENDATION 9/27/19 Petition of State Farm for Superior Court case # for the purpose of issuing subpoenas for the production of documents. Petitioner is investigating a claim of i...

Excerpt: ...aking in the amount of $60,000 to Catalina's counsel, to compensate Catalina for loss of use of the property from the date of the hearing until January 2021. The amount of the undertaking is based on the court's best estimate, given the information provided by Catalina, of the loss Catalina will incur from loss of use, less expenses of ownership, until January 2021, which is the estimated date the court of appeal will rule on Plaintiff's appeal. ...

Excerpt: ...f is claiming that he was injured during the accident in question. (Complaint ¶10.) Defendant is entitled to an examination under 2032.220(b). Therefore, the court GRANTS the motion to compel Plaintiff's attendance at the Independent Medical Examination with Dr. Oshtory on December 19, 2019. Dr. Oshtory is to produce his report on an expedited basis, specifically within two weeks of the examination in light of the upcoming trial date. VEHICLE IN...

Excerpt: ...sser performed his work on the project from an elevated platform 10 feet above the floor, which could only be accessed by a scissor lift or a ladder that was tied with a strap to a metal column adjacent to the platform. On the day of his injury, Paul Esser was attempting to descend from the platform on the ladder when the strap broke and the ladder slid, causing him to fall and break his ankle. (See, generally, Flying Moose, LLC's Separate Statem...

Excerpt: ...itled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of produ...

Excerpt: ...whole [; and] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." Because this code section is mandatory and considers only the health of the moving party, the Court may not engage in a weighing of interests or comparison of potential prejudice to the opposing party once it finds that the moving party has made its showing. (Fox v. Superior Court (2018) 21 Cal.App.5th 5...

Excerpt: ... that a Satisfaction of Mortgage ("SM") was recorded for the property on July 24, 2019. QLSC declares non-monetary status pursuant to Civil Code section 2924l. BANA has filed papers in opposition to the motion. For the reasons discussed below, the motion is DENIED. PROCEDURAL MATTERS Opperwall's motion is untimely. A motion for judgment on the pleadings may not be made against a defendant before the defendant has filed an answer and Plaintiff's t...

Excerpt: ...Joe's Co. Plaintiff's counsel has submitted a declaration including the As You Sow consent judgment, which includes a process by which the defendants in that case fund a panel of scientists to research and lower the "naturally occurring" levels set in that litigation. Plaintiff's counsel also declares that cocoa and cocoa powder are a commodity product whose source is not always readily ascertainable. This does not change the Court's analysis. Pl...

Excerpt: ...continue. The hearing on this motion will be CONTINUED to December 30, 2019, at 3:00 P.M. in Department 19, Administration Building (Third Floor), 1221 Oak Street, Oakland. A. Father Van Dinh's Clergy File. Plaintiff seeks production of certain documents maintained by RCBO as part of Fr. Van Dinh's "clergy file," which the parties both describe as containing the same kinds of personal information that may be included in employee personnel files. ...