Excerpt: ...re section 2034.610 permits a party to seek to "[a]mend that party's expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give." (See also Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1039 [stating that a trial court's determination to grant relief will not be disturbed absent a showing of abuse of discretion].) In deciding a motion made under section 2034.61...

Excerpt: ...or all purposes. The separate action is currently being prosecuted by Ms. Fisher's successor in interest. Plaintiff Morken alleges that the sales representatives of Vivint Solar, Inc. and Vivint Solar Developer, LLC prey upon individuals who do not know their legal rights. In this case, after Plaintiff's elderly mother expressed interest in having solar panels installed on her roof, Tyler Williams, Defendants' Regional Vice President of Sales Wes...

Excerpt: ...cation as to each of the First through Eighth Causes of Action therein. Because summary judgment may be granted only if Defendants are entitled to judgment as to each and every cause of action (see C.C.P. § 437c(c)), the court proceeds by addressing the motion for summary adjudication as to each such cause of action. A. First Cause of Action The motion for summary adjudication as to the First Cause of Action is GRANTED. This cause of action alle...

Excerpt: ...ready amended its pleading once as a matter of right. (See CCP sec. 472.) Nonetheless, the Court now deems the SAC filed, as of October 15, 2019. As the SAC is the operative pleading, ILTS LLC's demurrer to the FAC is MOOT. ILTS LLC shall respond to the SAC, by answer, demurrer, or other procedural device permitted by the Code of Civil Procedure, no later than December 5, 2019. The Court does not reach the substantive arguments of the present dem...

Excerpt: ...n 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 testing a pleading against a d...

Excerpt: ...se of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593...

Excerpt: ...nt with leave to amend. Cross-Complainant filed its First Amended Cross-Complaint on September 3, 2019. Cross-Complainant substantially supplemented its factual allegations in support of its claim of delayed discovery. Cross-Complainant also added allegations that Clark Smith, the Managing Member of CrossLink Networks, LLC, made representations that led Cross-Complainant to believe that it did not need to file a lawsuit to recover the amount owed...

Excerpt: ...Trust (Dated August 20, 1997) is DISMISSED. STANDARD OF LAW FOR DEMURRER "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; see also CCP sec. 438 [discussing motions for judgment on the pleadings]; Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [same].) The Court must determine "whether the complaint alleges facts sufficient to state a c...

Excerpt: ...d Ali (collectively, "Defendants") based upon the failed short sale of real property located in Berkeley, California (the "Property"), wherein Plaintiffs entered into an agreement to purchase the Property and allege that Defendants mishandled the lender approval process for the short sale. Plaintiffs allege claims for breach of fiduciary duty, professional negligence and negligent misrepresentation. Plaintiffs and Defendants entered into a settle...

Excerpt: ...ary Judgment is granted because it has made the required prima facie showing that no triable issues of material fact remain regarding Plaintiff's claim that the City had actual or constructive notice that the tree or tree branches that fell on her vehicle were in a dangerous condition. See Govt. Code § 835; and Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The City has counted approximately 200,000 trees in its parks and along it...

Excerpt: ...)(1).) "A party may move for summary adjudication as 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 . . . ...

Excerpt: ...plications 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 claim that they have since identified defects in the claims in th...

Excerpt: ...filing an opposition to Defendant's Demurrer, without leave of Court or stipulation between the parties. Thus, the November 4, 2019 First Amended Complaint is hereby STRICKEN. STANDARD OF LAW "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 disclo...

Excerpt: .... Proc., § 430.10, subd. (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. Kirw...

Excerpt: ...response to the Tenth Cause of Action or additional affirmative defenses related to the Tenth Cause of Action. Defendant is not permitted, at this time, to amend any other portion of her previously-filed Answer. "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 o...

Excerpt: ...the page limit in their Motion for Judgment on the Pleadings, and now by violating California Rule of Court, Rule 2.104 with respect to the font size by using size 9.5 to 10.5 font instead of size 12 point font. Though they blame their printers, they are required to ensure compliance with the Rules of Court. If there are any further papers in this action and Erchinger Defendants continue to violate the Rules of Court, the Court shall consider san...

Excerpt: ...sel for Plaintiff gave notice of the settlement to the Court on that same date. Defendant Wente Bros. agreed that it would pay Plaintiff and his attorneys the sum of $1,090,000 no later than twenty-one (21) days after September 6, 2019. Plaintiff Munoz agreed to dismiss his action against Defendant with prejudice within ten (10) days of his and his attorneys' receipt of the four separate checks. In paragraph 11 of the Term Sheet, the parties agre...

Excerpt: ...putes some of the facts in the Complaint but asserts no affirmative defenses. After Defendant failed to respond to Plaintiff's Requests for Admissions, the Court entered an order deeming the admissions admitted on March 14, 2019. STANDARD OF LAW FOR MOTION FOR JUDGMENT ON THE PLEADINGS A court may grant a motion for judgment on the pleadings "[i]f the moving party is a plaintiff," and "the complaint states facts sufficient to constitute a cause o...

Excerpt: ...ny pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of the proceeding[.]" (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 488-89.) A court's discretion is usually exercised liberally to permit amendment of the pleadings, and it is a rare case in which denial of leave to amend can be justified. (See, e.g., Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) "[I]t is an abuse...

Excerpt: ...uses 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 not owe a duty to ...

Excerpt: ...nt due on January 15, 2019. Defendant significantly does not dispute Plaintiff's assertion that it has made only six monthly payments and a $2,000 partial payment. The motion is granted in part because the Court does not agree with Plaintiff's apparent contention that it should enter a Judgment for only the payments that Defendant has missed to date. The Court will instead enter a Judgment in the sum of $125,000.00 with the payments made to date ...

Excerpt: ...iled a First Amended Complaint that also asserted that his vehicle was equipped with a dash camera that recorded video of the traffic accident. On 7/30/19, the court ordered plaintiff to provide responses by 8/12/19. On 8/8/19, Plaintiff provided responses to the Form Interrogatories, but not to the request for documents. On 10/4/19, defendant filed this motion. On 10/28/19, plaintiff filed an opposition, asserting that on or about 3/28/19 the vi...

Excerpt: ...ME after it had started without good cause. The court is not convinced that the failure to come to an agreement on the conditions of the examination constitutes a waiver of Defendant's right to move to compel an IME by Dr. Strassberg. The court therefore compels that Plaintiff participate in an IME with Dr. Strassberg, subject to the following conditions discussed below. After reviewing the evidence presented in support of the motion and the decl...

Excerpt: ...tained a traumatic brain injury as a result of the collision and currently has symptoms of a post-traumatic stress disorder. Counsel for Plaintiff and Defendant do not disagree about the necessity of a neuropsychological examination. Counsel simply disagree about the conditions that each side wants to impose on the examination. The Court met with counsel for an informal discovery conference on September 18, 2019. The Court begins by overruling th...

Excerpt: ... that were used during, and after, Serrato's employment with PDI, but the requests do not limit inspection to devices or cloud-based storage accounts that have been used in connection with Serrato's employment with PDI or whichcontain data relating to Serrato's employment with PDI. All of PDI's requests shall be limited to devices and cloud-based storage accounts that were used in connection with Serrato's employment with PDI or contain data rela...

Excerpt: ...imely filed. On 10/24/19, after this motion was filed, Defendant filed notice of an undertaking. Defendant urges the court to deny this motion on the ground that it was not served in accordance with the requirements of CCP §1005(b). Defendant's opposition addresses the motion's merits, and does not demonstrate any prejudice arising directly from the service issue. Accordingly, the court considers the motion on its merits. Cal.Labor Code §98.2(b...

Excerpt: ...or Fair Franchising v. Southland Corp. (2000) 85 Cal. App. 4th 1135.) In reviewing class settlements, the Court acts both as a neutral decision maker and as a guardian of the absent class members. (In re Warfarin Sodium Antitrust Litig. (3rd Cir. 2004) 391 F.3d 516, 534 ["the district court acts as a fiduciary who must serve as a guardian of the rights of absent class members"].) Class actions cannot be dismissed without Court approval. CRC 3.770...

Excerpt: ...ther, it is QUASHED. Tri-Center Health Center may produce its records related to Plaintiff in regards to August 13, 2018. Plaintiff has filed an action against Defendants alleging various causes of action related to injuries related to an allegedly defective food product she claims was sold to her by Defendants. In her First Amended Complaint ("FAC"), among other allegations, Plaintiff alleges, after purchasing the food product from Defendants sh...

Excerpt: ... (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 testing a pleading ag...

Excerpt: ...motions for reconsideration. To the extent that they might be motions for reconsideration, the court exercises its discretion and will consider the motions on the merits. PLEADING SPECIFICITY A complaint must include "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (CCP 425.10.) A complaint "ordinarily is sufficient if it alleges ultimate rather than evidentiary facts." It is adequate if the complai...

Excerpt: ...errogatory No. 17.1, to produce responsive documents, and for an award of monetary sanctions, is ruled upon as follows: Plaintiff concedes that it has not provided supplemental responses to Requests for Admission, Set Two, Nos. 163B-188, and corresponding Form Interrogatory No. 17.1. These requests relate to EPDM. Plaintiff asserts that it anticipates that responses to the Requests for Admission and Form Interrogatory No. 17.1 will be provided by...

Excerpt: ...t DODG Corporation ("DODG"), the landlord of Defendant FastTrack Airport Parking, Inc. ("FastTrack Inc."), is liable for Plaintiffs' injuries caused by FastTrack Inc., because the single enterprise/alter ego doctrine dictates that the limited liability protections that usually insulate separate corporations from liability for the other corporation's debts do not apply under the circumstances of the case. DODG now moves for summary judgment as to ...

Excerpt: ...adjudication set to be heard on October 30, 2019. In support of their motion, Plaintiffs have submitted a number of items designated as confidential under the protective order, including stock certificates, financial payments, and other sensitive corporate and business information. Defendants now move the Court, pursuant to California Rules of Court, Rule 2.551, for an order sealing Plaintiffs' motion for summary adjudication based on the confide...

Excerpt: ...ly and concisely all material facts that the moving party contends are undisputed." Similarly, Cal. Rule of Court 3.1350(d)(2) limits the separate statement to "only material facts and not any facts that are not pertinent to the disposition of the motion." Plaintiff did not file a responsive separate statement, but instead objects to the defendants' separate statement on the ground that it is not limited to material facts, and undermines the obje...

Excerpt: ...Port Oakland, LLC, from whom PCC apparently intends to seek discovery, preclude it from participating in a trial on Plaintiff's sole claim of unfair business practices, or that the parties' discovery disputes have deprived it of a "reasonable opportunity" to conduct discovery germane to Plaintiff's UCL claim. In any event, the court finds that alternative means exist to adequately address the issue that gave rise to this motion for continuance. (...

Excerpt: ...inal Case"). Specially, in this civil action, Plaintiff alleges Defendant's prosecutorial conduct in the Criminal Case has violated Plaintiff's rights to discovery, a fair trial, due process, and a constitutional right to a speedy trial. Defendant now seeks to strike Plaintiff's Complaint as a strategic lawsuit against public participation ("SLAPP"). "A cause of action against a person arising from any act of that person in furtherance of the per...

Excerpt: ...f's vehicle is referred to in the First Amended Complaint as "the Subject Vehicle." Plaintiff also makes allegations regarding so-called "Class Vehicles" in the First Amended Complaint. The Court could not find a special definition for that term in the First Amended Complaint. Plaintiff identified a total of 51 alleged defects with his vehicle in paragraph 8 of the First Amended Complaint. The majority of the defects concern defects with Kia's GD...

Excerpt: ...e 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. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties." Here, on October 2, 2019, Plaintiff elected to file and serve a First Amended Complaint ("FAC") rather than oppose Defendant's pending Demu...

Excerpt: ...ed the meal and rest break claim. There are approximately 153 members of the class. (La Dec., para 5.) The case preliminarily settled for a total of $320,000. The settlement agreement states there will be attorneys' fees of up to $106,666.67, costs of up to $10,000, a service award of $7,500 for each class representative, settlement administration costs of $14,000. After these expenses, the class would get $174,333.33. This is an average of $1,14...

Excerpt: ...y noticed motion or ex parte application." (CCP § 387(c).) "The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests." (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[...

Excerpt: ...n his motion, Plaintiff seeks a protective order under section 2025. 420, arguing he himself is not competent to testify, due to the injuries he suffered in the incident that is the subject of this lawsuit. Therefore, Plaintiff argues, the Court should issue an order preventing or limiting the other parties' ability to depose him. Evidence Code section 701(a) provides that "[a] person is disqualified to be a witness if he or she is: (1) Incapable...

Excerpt: ...tion, 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...

Excerpt: ...the action or proceeding." (CCP § 437c(a)(1).) "A party may move for summary adjudication as 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 ...

Excerpt: ...r summary adjudication as 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 defen...

Excerpt: ...l interest in the action as a 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...

Excerpt: ... to determine the order of proof in the interests of judicial economy." (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.) "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial . . . of any . . . issues . . . ." (CCP sec. 1048(b).) The "court may, when the convenience of witnesses, the ends of justice, or the economy and ef...

Excerpt: ...ndant's current responses to Form Interrogatory 17.1 to be incomplete (and possibly evasive) in that they are not responsive to the interrogatory and the requests for admissions that were actually posed. The interrogatory and corresponding requests for admission ask Defendant to state all facts regarding whether pilot salaries and pilot benefits had been invoiced "at cost" or "marked up." Defendant's responses merely reference certain sections of...

Excerpt: ...e in support of their "renewed" motion the form of a supplemental declaration of Gina Sims, which they allege clarifies the ambiguity that court relied upon when denying the prior motion to compel. Plaintiff is required to present evidence that reconsideration should be granted due to the existence of new or different facts, circumstances or law. See CCP § 1008(a). A motion for reconsideration under C.C.P. § 1008(a) requires the moving party, a...

Excerpt: ... (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 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...

Excerpt: ...s motion. (See Code of Civil Procedure section 439(a)(4).) Plaintiffs' motion is GRANTED, WITH LEAVE TO AMEND for Defendant to allege facts in support of its First, Second, Fourth, Fifth, Seventh, Eighth, and Tenth Affirmative Defenses. Defendant's statement at page 6:3-8 of its opposition brief that it has alleged various facts in support of these defenses is incorrect. Defendant has argued in its opposition brief that either Plaintiffs or other...