Excerpt: ...nt Anne J. Levesque's mesothelioma. Plaintiff's Complaint, filed on December 1, 2017, pleaded seven causes of action for negligence, strict liability, negligent misrepresentation, fraud by nondisclosure, vicarious liability based on respondeat superior, premise owner/contractor liability, and loss of consortium. The Complaint also demands punitive damages. Defendant now seeks summarily judgment, or, in the alternative, summary adjudication of the...

Excerpt: ...d. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 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...

Excerpt: ...dget representative that Plaintiff owed money to The Hertz Corporation, and that she had bad credit. Plaintiff alleges that several Budget employees discussed her bad credit and debt owed to Hertz Corporation in front of four other customers. Plaintiff alleges that Budget and Avis falsely represent themselves as two different companies. Plaintiff alleges that ABG committed slander, but she did not file suit until August 20, 2018. The statute of l...

Excerpt: ... ("Leonard"). (See Second Amended Complaint, paragraph 12.) However, Plaintiff alleges that he did not intend to transfer title to the subject property to Larry, Mark, and Leonard at the time he executed the grant deed. (Id.) Instead, Plaintiff believed that in order to validly transfer title, the grant deed would first have to be recorded, and Plaintiff instructed Larry not to record the grant deed. (Id. at paragraphs 12-14.) Plaintiff later exe...

Excerpt: ...mplaint alleging the same causes of action. A second Amended Complaint was filed on 6/14/2019. Plaintiffs allege that they were working at a construction site when the elevated platform on which they were working collapsed, causing them to fall and sustain serious injuries. It is unclear from the complaint precisely what role the defendants had in causing plaintiffs' injuries, as defendants are not plaintiffs' employer. It appears defendants prov...

Excerpt: ... persons similarly situated who have been employed by Defendant as non-exempt electricians in the State of California within the applicable class period [of July 16, 2015 through trial]." Plaintiff's claims of Defendant's policy and practice of failing to abide by applicable Labor laws during the class period are described generally in paragraph 3 of the First Amended Complaint. Defendant contends that this action should be abated because Plainti...

Excerpt: ...f action) 'involves' an agreement, in the sense that the action (or cause of action) arises out of, is based upon, or relates to an agreement by seeking to define or interpret its terms or to determine or enforce a party's rights or duties under the agreement, and (2) the agreement contains an attorney fees clause." (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1170, quoting Douglas E. Barnhart, Inc. v. CMC Fabricators, ...

Excerpt: ... truck. The complaint was not served on Martinez until 5/10/2019. On 5/15/2019 Martinez filed an answer in pro per. Martinez retained counsel and a verified answer to the complaint for defendant TSTT was filed on 8/28/2019. Defendants TTST and Martinez filed this motion for leave to amend answer on 10/4/2019. The proposed amended answer simply consolidates the respective answers filed by Martinez and TTST. The proposed amended answer is in all ot...

Excerpt: ...s") opposition is untimely because it was filed and served on November 21, 2019, instead of November 18, 2019. The Court notes that Plaintiff's Motion failed to provide adequate notice as it was served by mail on November 8, 2019 for a hearing set on December 3, 2019, when notice should have been served by mail no later than November 1, 2019. As both parties failed to comply with the Code of Civil Procedure but were able to substantively respond ...

Excerpt: ...th Cause of Action for Negligent Misrepresentation, pursuant to CCP § 430.10(e), is SUSTAINED WITH LEAVE TO AMEND. Plaintiff did not comply with its obligation to plead specific facts supporting each element of its fraud claims against Defendants. See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (complaint must contain facts showing how, when, where, to whom, and by what means the representations were made); and Tarmann v. State Farm Mut. ...

Excerpt: ... any defendant, cross- complainant, intervenor, or cross-defendant has asserted any claims against the Owner Defendants, so that aspect of the motion is moot. In addition, the register of actions for this case does not reflect that Plaintiff filed any response whatsoever to the 42 facts in the Owner Defendants' Separate Statement. Instead, Plaintiff's opposition Separate Statement contains 25 completely new facts. Plaintiff's failure to respond t...

Excerpt: ...uld find in its favor as to each element of its claims. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Defendant does not have an obligation to present any contrary evidence until the initial burden is met. Id. at 850-851. Plaintiff's motion is based entirely on Defendant's account records and his initial application for an account. The declaration of Donna Toomes, Team Leader of Discover Products, Inc., however, is not suffici...

Excerpt: ...App.4th 763, 772.) Plaintiff's arguments about whether the agreement complied with the requirements of the Rees-Levering Automobile Sales Finance Act (Civil Code § 2981 et seq.), and whether the arbitration provision is enforceable under the Federal Magnusson Moss Warranty Act (15 USC § 2301 et seq.) appear to be misplaced, because Plaintiff has not alleged any claims under either of those statutory schemes. Rather, the only claims Plaintiff ha...

Excerpt: ...ormation concerning facility name, department, section, or location within a facility is unknown. This renders his response to Nos. 6- 9 equally confusing. In addition, Plaintiff's identification of coworkers in Nos. 8 and 9 fails to provide the requested information about the location and period of employment applicable to those coworkers. No. 13-16, 18: GRANTED. Additional specificity is required. Plaintiff's responses are not organized in a wa...

Excerpt: ...aragraph 6, that Ali would pay Kante $12,500, and Kante would have the right to an additional $14,209.41 through an assignment and lien on Ali's share of any proceeds recovered by Ali "from any and all claims against Mid-Century Insurance, State Farm Insurance, Kevin Dawson or any other entity or person concerning [Ali's] claims concerning or relating to" Ali's house located at 7757 Hanson Drive, Oakland. Kante subsequently filed two motions to e...

Excerpt: ... IT IS FURTHER ORDERED THAT that Plaintiff/Defendant Singh shall deposit with the Court $3,000.00 per month as security. (See Dec. S. Singh, ¶ 17.) The first security deposit shall be made on January 1, 2020 and on the first day of every following month until further order of this Court or until the matters involved in the consolidated actions have been finally and completely disposed of and resolved, at which point the Court will order disposit...

Excerpt: ... Settlement Agreement provides that unclaimed funds will escheat to the Cal. Dept. of Industrial Relations ("DIR") Unclaimed Wages fund. However, according to the DIR's website at , the Labor Commissioner no longer accepts funds payable as a result of the settlement of private litigation. Nevertheless, if the parties (1) enter a modification of the Settlement Agreement containing a proper cy pres designation; and (2) file and serve an appropriate...

Excerpt: ...se of operating Moxy Beer Garden, a taproom and restaurant, at the premises, and that it was an intended beneficiary of the lease. Moxy alleges Perez breached the lease by failing to extend the lease at the request of Michael Voisenat, and instead requiring Moxy to execute a new lease, which never occurred. Moxy alleges that Michael Voisenat properly exercised the option to extend by notifying Perez by email of his intent, and seeks to enforce th...

Excerpt: ...red while driving at the intersection of Laurel Creek Drive and Foothill Drive in Pleasanton when she was hit by a car driven by Defendant Elijah Henry ("Henry"). (See the City's Separate Statement Facts ("SSF") Nos. 15-20 and the evidence cited in support.) A few minutes before the accident, Henry had been inside his car at the Laurel Creek Staging Area when he saw a police patrol car, driven by City of Pleasanton Police Office Matthew Harvey ("...

Excerpt: ... response to J-MM's subpoena, they suspected that J-MM had limited its request to specific job or jobs that it knew did not involve asbestos-containing pipe products. Plaintiffs served their own subpoena on WVWD shortly thereafter seeking all documents regarding WVWD's relationship with J-MM and documents regarding asbestos pipe. WVWD produced roughly 200,000 documents on November 19, 2019. J-MM claims it needs time to review these documents and ...

Excerpt: ...ts discretion" to "[s]trikeout any irrelevant, false, or improper matter inserted in any pleading." "In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff." (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255 [internal citations omitted].) "In passing on the correctness of a ruling on a motion to strike, judges read allegations of a ...

Excerpt: ...k driver for a company owned and operated by the other Defendants, negligently dropped and reached for his phone while driving, causing an accident and Plaintiffs' injuries. Plaintiffs' Complaint alleges causes of action for negligence, negligence per se, and negligent entrustment/hiring/training/supervision. Plaintiffs' Complaint also requests punitive damages. Defendants now move to strike punitive damages from the Complaint. "The court may, up...

Excerpt: ...r relief under Code of Civil Procedure section 473(b). (Mitchell v. Dept. of Transportation (1985) 163 Cal.App.3d 1016, 1021.) When a petition for relief is based on attorney fault and the petitioner is not challenging a default, default judgment or dismissal, the petitioner must establish that the attorney's neglect was excusable. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.) The Petition is not accompanied by a declaration...

Excerpt: ...ntentions, 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.) PLEA IN ABATEMENT A defendant may demur to a complaint on the grounds that "another action [is] pending between the same parties on the same ca...

Excerpt: ...the complaint arose out of his employment with TeneoBio. As such, he cannot be liable for interfering with Plaintiff's employment contract with TeneoBio, because corporate agents and employees acting for and on behalf of a corporation cannot be liable for inducing breach of the corporation's contract. (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1604.) Only noncontracting parties who interfere with the performance of a contract...

Excerpt: ... accounts. While the injunction is in place, should Defendant wish to make a withdrawal related to his services as medical director or for any other purpose, Defendant must first present the request to the full Board of Directors. Only upon written approval of the full Board of Directors may the withdrawal be made. The court does not impose as a condition of the preliminary injunction a bond or undertaking. (See CCP sec. 529(a).) In deciding whet...

Excerpt: ...t MERS had no interest in the loan and was not a valid beneficiary and that there were irregularities in the assignments and substitutions of trustees, including the assignment to The Bank of New York Mellon because the individuals who signed the various assignments and substitutions did not have authority to do so. (FAC ¶21, 30, 32-112.) CIVIL CODE § 2934a Defendants demurrers to the first cause of action because it is unclear who it is allege...

Excerpt: ...s." (Id.) "The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) [a] provision of law confers an unconditional right to intervene[;] [and/or] (B) [t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impa...

Excerpt: ...nd its non-profit subsidiary, The Institute for Medical Quality ("IMQ") as an Associate Administrator from February 22, 2017 to February 26, 2018. Plaintiff alleges that Defendant Julio Samper sexually harassed her throughout her employment with words and gestures. Plaintiff alleges that Defendants failed to take appropriate corrective action when she reported Defendant Samper's conduct. After taking a medical leave of absence due to her anxiety ...

Excerpt: ...rise out of six construction projects. Dreambuilders was the owner of all six properties. In its First Amended Complaint, Dreambuilders alleges it hired Buildzig to provide construction management services, and manage distribution of loan funds, for all six projects. Dreambuilders and Buildzig, along with the construction lender or lenders for each project, entered into six Risk Control and Funds Control Services Agreements ("Agreements"). In tho...

Excerpt: ... Defined Benefit Plan, and allegedly was involved in the fraudulent dealings alleged in the First Amended Complaint. Plaintiff, proceeding in pro per, states that her former counsel had represented that Solarius was an essential party but failed to include it in this action. Defendants argue that Plaintiff's motion is time-barred under Code of Civil Procedure section 583.210 which requires that "[t]he summons and complaint shall be served upon a ...

Excerpt: ...n any county "in which the unlawful practice is alleged to have been committed, ... or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office." Defendants contend that the alleged unlawful practi...

Excerpt: ...ing or denial of a forum non conveniens motion lies within the court's sound discretion. (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 610-611; Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751-752; C.C.P. § 410.30(a).) In exercising its discretion, however, the court must bear in mind that the moving party bears the burden of proving that California is an inconvenient forum. (Ford Motor Co., supra, 35 Cal.App.4th ...

Excerpt: ...ervices Agreements with Buildzig to perform funds control and construction management services with regard to six different construction projects. In those Agreements, Dreambuilders is identified as "Owner" and Buildzig is identified as "Consultant." Iron Bridge was a lender on three of the projects and it is identified as one of the "Lenders" in three of the Agreements. Dreambuilders alleges that Buildzig breached all six Risk Control and Funds ...

Excerpt: ...hat Plaintiff's motion is an improperly filed Motion for Reconsideration. See CCP § 1008(a). Defendants' argument has some merit, though the Court holds that Plaintiff can seek sanctions a second or third time if the underlying factual record changes over time. In this case, however, Plaintiff has made his request based on essentially the same record. There is very little in the Declaration of Andrew Reisman, CEO of Elijah Ltd., that was not exp...

Excerpt: ...suant to Code of Civil Procedure section 425.16(c)(1). In their moving papers, Defendants sought to recover $51,322.50, based on legal fees of $44,392.50, statutory costs of $1,800, and costs of $5,130 for the expert testimony of Benjamin Shatz. The motion is supported by the declaration of Benjamin J. Shatz, a Certified Specialist in Appellate Law, who is offered as an expert witness. He opines that the requested hourly rates of $150 for paraleg...

Excerpt: ...e 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.) Unless a heightened pleading standard applies, a complaint nee...

Excerpt: ...e 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.) Unless a heightened pleading standard applies, a complaint nee...

Excerpt: ...e, sec. 1043(b)(3).) A showing of "good cause" under section 1043 is established if the party seeking records demonstrates through affidavits a "plausible factual foundation" for how the records are material to the subject matter of the pending litigation. Materiality is measured by relatively relaxed standards that serve to insure the production of all potentially relevant documents. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655.) Defen...

Excerpt: .... In their earlier motion, Petitioners argued that the Respondent's mechanic's lien is invalid because Respondent failed to give notice to a purported construction lender. The Court initially tentatively denied the motion but continued the motion to allow for an evidentiary hearing on contested issues of fact. In the Petition before the Court today, Petitioners seek relief solely on the separate grounds that Plaintiffs' action to enforce the lien...

Excerpt: ...ugust 2, 2013. The subject property included a warehouse. This unlawful detainer action was commenced upon the expiration of a 3-day notice to quit, alleging that lessee Silverado Contractors, Inc. ("Defendant"), which operated a concrete and asphalt recycling facility at the premises, had breached material covenants of the lease by using the property for an illegal purpose (i.e., operating its business in violation of various Oakland municipal o...

Excerpt: ...r Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first." The court's record reflects that the courtroom clerk served the Decision and Order on the parties by mail on 8/9/19. Defendants filed their memorandum of costs on 8/26/19. The fifteenth day after the 8/9/19 service date was 8/24/19, a Saturday. The memorandum of costs ...

Excerpt: ...ny part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; or (3) a demand for judgment requesting relief not supported by ...

Excerpt: ...cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action[;] [or] (2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property." (CCP § 415.50(a).) "The court shall order ...

Excerpt: ...ended her complaint to substitute Defendant Doe 1 with Renoir. OHA states that it used Renoir's temporary staffing services to hire a temporary worker to make repairs to the staircase where Plaintiff slipped and fell. Renoir then made this motion seeking to be dismissed from Plaintiff's complaint and summons on the basis of sovereign immunity and Plaintiff's failure to exhaust her remedies before a tribal court. After the initial hearing on this ...

Excerpt: ...e, involving, but not necessarily limited to, "a manual search of the Outlook accounts of Will Jones and Carl Curry;" the "electronic information from Karen Hafstad and Karen Moubara," which was anticipated to be received by October 28, 2019; and the "results of those searches," which were anticipated to be completed by November 4, 2019. To the extent the documents and information referenced by or resulting from the above have not already been co...

Excerpt: ...etitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (CCP § 1281.2; see also CCP § 1281.7; cf. 9 USC §§ 1 et. seq.) Plaintiff filed her Complaint on July 22, 2019, alleging various causes of action in connection ...

Excerpt: ...premises of Plaintiff at the Property; and (3) possessing, selling, using, or destroying any of the business assets or property of Plaintiff located within the Property, until further order by the Court. "A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the 'interim harm' to that party if an injunction is denied is greater than 'the [inte...

Excerpt: ...l.App.4th 1058, 1068.) Here, Plaintiff's motion must be DENIED. Initially, Plaintiff's motion suffers from fatal procedural defects. Plaintiff did not file or serve her motion at least 16 court days before the hearing, as required, and, in fact, only filed it on October 21, 2019, 13 court days before the hearing. (See CCP § 1005(b).) Plaintiff has not, to date, filed a proof of service. Nonetheless, Defendant Sutter Bay Hospitals dba Eden Medica...

Excerpt: ...e policy favoring leave to amend is strong. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760-761.) Here, the main purposes of Plaintiffs' proposed amendment is to assert an affirmative defense based on waiver and estoppel. (See Dec. K. Jones, para. 7.) Trial in this matter is set for October 13, 2020, almost one year away. While Plaintiffs accuse Defendant of delay, the amount of time between the initial Answer and the filing of this mo...