Excerpt: ...igible for relief under CCP section 473 because her declaration does not include any facts that constitute mistake, inadvertence, surprise, or excusable neglect. "The terms mistake, inadvertence, surprise, and excusable neglect warranting relief under section 473(b) are defined as follows: Mistake is not a ground for relief under section 473, subdivision (b), when the court finds that the mistake is simply the result of professional incompetence,...

Excerpt: .... In this case, however, the Court declines to deny the motion on this ground because Plaintiffs served their subpoena on July 3, 2019, and counsel then tried to have this matter put before the Court in August 2019. The trial date was moved due to the Court's unavailability. Furthermore, the Court does not believe that the cutoff date for conducting fact discovery and having discovery motions heard applies to the instant motion because Section 19...

Excerpt: ...ential wire installer in Sacramento County. The Court finds no issue with PacBell's responses to Request for Production No. 1, Special Interrogatory No. 34, and Form Interrogatory Nos. 4.1-4.2. The Court finds that PacBell's responses to Request for Production Number 2 and Special Interrogatory Nos. 3-4 are inadequate. PacBell states only that it has not found a "centralized list of employees" and has "no way to search for such information." PacB...

Excerpt: ...e 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.) Summary judgment is proper only when "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 of Civil Procedure ["CCP"] § 437c(c).) When a defendant moves ...

Excerpt: ... served with the Summons at their home in Castro Valley. On April 17, 2019, Plaintiff filed her Requests for Entry of Default by Clerk. The Clerk then entered the defaults on April 18, 2019. On June 10, 2019, without the assistance of an attorney, Defendants appeared at the Case Management Conference in person. The Court set the August 6, 2019 prove-up hearing at that time. On August 6, 2019, Defendants appeared at the prove-up hearing. On Septem...

Excerpt: ...ice of the request and has not objected to it, the Court is reluctant to grant the request because the language of the Proposed Order is very broad and could apply to testimony that does not tend to incriminate Defendant. The Court does acknowledge that the failure of the District Attorney's Office to object should be considered in reaching a decision on the motion. See Daly v. Superior Court (1977) 19 Cal.3d 132, 147-148. The Court also prefers ...

Excerpt: ..., eighth, ninth, tenth, "tenthth" (sic), eleventh, and twelfth causes of action. McAfee does not demur to the FAC's first, sixth, or seventh causes of action. Plaintiff has not filed papers in opposition to the demurrer. For the reasons discussed below, the demurrer is SUSTAINED WITH LEAVE TO AMEND. LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly ...

Excerpt: ...essary legal action & false accusation" but otherwise OVERRULED. LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole ...

Excerpt: ...court at the hearing"]; Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 69, 70 [similar].) TENTATIVE DECISION The Demurrer of Alameda County Board of Education and Albany Unified School District to the First Amended Complaint is OVERRULED. The court grants petitioner leave to amend to file a Second Amended Petition that is a complete standalone document and is not conjoined with a memorandum of points and authorities. Petitioner may also a...

Excerpt: ... served with the Summons at their home in Castro Valley. On April 17, 2019, Plaintiff filed her Requests for Entry of Default by Clerk. The Clerk then entered the defaults on April 18, 2019. On June 10, 2019, without the assistance of an attorney, Defendants appeared at the Case Management Conference in person. The Court set the August 6, 2019 prove-up hearing at that time. On August 6, 2019, Defendants appeared at the prove-up hearing. On Septem...

Excerpt: ...n." (Cal. Lab. Code § 218.5.) "However, if the prevailing party in the court action is not an employee, attorney's fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith." (Id.) Labor Code section 226 states: "An employee suffering injury as a result of a knowing and intentional failure by an employer to [provide accurate itemized wage statements] . . . is entitled...

Excerpt: ...the ground that there is a another action pending is SUSTAINED. In the First Cause of Action, Plaintiff seeks to quiet title to a month-to-month tenancy at 7203A Holly Street, Oakland, and the Second Cause of Action seeks a declaration that Plaintiff owns has month-to-month tenancy. Plaintiff does not seek to establish an ownership in interest in the real property, but merely the right to reside there as a tenant. Defendant Dellesia Onifade's com...

Excerpt: ...rounds during the lunch period. Plaintiff alleges that the Dean of Students violated her privacy during the ensuing investigation by asking other students how long Plaintiff and B.M. had been dating, even though Plaintiff informed them she first met B.M. on the date of the assault. Thereafter, other students asked Plaintiff about the incident. In her cause of action for Intentional Infliction of Emotional Distress, Plaintiff alleges that District...

Excerpt: ...er 2015 to October 2018, where he worked as a "Parts Specialist." In this action, Plaintiff and other non-party aggrieved employees seek to recover civil penalties pursuant to Labor Code section 2699(a, (f), and (g). O'Reilly contends that because this action seeks only statutory penalties, it is governed by Section 393(a), which provides that "the county in which the cause, or some part of the cause, arose, is the proper county for the trial of ...

Excerpt: ...ted to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (CCP § 2033.420(a).) The court shall make this order unless it finds any of the following: (1) an objection to the request was sustained or a response to it was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that that party would prevail on the ma...

Excerpt: ... discretion when ruling on requests for a preliminary injunction. See King v. Meese (1987) 43 Cal.3d 1217, 1226-1228; and Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749. The Court should consider the evidence presented by plaintiff in support of his claim that he will likely prevail on the merits and balance the likely harm that the plaintiff will sustain if the injunction does not issue against the likely harm that the def...

Excerpt: ...fendant 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).) The present lawsuit filed by Plaintiff filed a "Complaint for Refund of Overpayment of Personal Income Taxes" alleging that Plaintiff overpaid his 1993 income taxes. (Complaint at ¶¶ 3-5.) Here, Defendant has prese...

Excerpt: ...ted service. Service of summons can be completed by substituted service, whether the party to be served is an individual or an entity. (See CCP sec. 415.20.) However, if the party to be served is an individual, the plaintiff must demonstrate reasonable diligence in attempting personal service first, before substituted service on that defendant can be effective. (See CCP sec. 415.20(b).) Here, Defendant has submitted evidence that it is not a corp...

Excerpt: ...nuary 1, 2019. Plaintiff alleges Defendant failed to do so. Plaintiff further alleges he was damaged by Defendant's failure to remove the wood and mulch by January 1, 2019 because Plaintiff has been sued by the property owner for failure to remove all items from the leased property (including the wood and mulch) upon termination of the lease, resulting in Plaintiff having to incur the costs of defending that action. (See Second Amended Complaint,...

Excerpt: ...uty to provide the premises in a clean, healthful, and safe condition and Defendant Raymond owed a duty to manage the premises in a reasonable manner. Plaintiffs allege that Defendants breached the duty of care by allowing Defendant Lyna Huynh to operate her nail salon and Defendant Jorge Ramirez to operate his dry cleaning business in a manner that caused exposure to toxic chemicals. Plaintiffs alleges that Defendants knowingly failed to properl...

Excerpt: ...der PAGA; they may only bring the action on behalf of themselves and all other aggrieved employees to vindicate the LWDA's interest in enforcement of the Labor Code. (Labor Code § 2699(c) & (g)(1); Williams v. Superior Court (2015) 237 Cal.App.4th 642, 649.) Any monetary penalties assessed against the defendant are split between the LWDA and named plaintiffs, with 75% going to the LWDA. (Labor Code § 2699(i).) Even outside of the settlement con...

Excerpt: ...tial Information and Inventions Assignment Agreement. (See, e.g., Angelica Textile Services Inc. v. Park (2013) 220 Cal.App.4th 495, 507-508.) In addition, for purposes of this motion, Plaintiff need not establish that there is a probability it will ultimately prevail on the merits of its claims in this case. Rather, Plaintiff must establish that there is a likelihood that Defendant's computer media contain discoverable evidence relevant to Plain...

Excerpt: ...ted pursuant to Measure AA. Measure AA imposes a parcel tax for 30 years to fund educational programs. As a parcel tax, Measure AA potentially falls under California Constitution Article XIII A § 4, Article XIII C § 2(d), and Article XIII D § 3(2), each of which requires a two- thirds vote prior to imposing such a tax. Measure AA, however, was place on the ballot as a result of citizen's initiative, "The Children's Initiative of 2018." In the ...

Excerpt: ... forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defe...

Excerpt: ...t file their Answer until April 30, 2019. The deadlines for responding to a validation or reverse validation action as provided in Code of Civil Procedure sections 861.1, 862 and 869 function as a statute of limitations, and if an interested party does not appear during the prescribed time, he or she loses the opportunity to challenge or support the government's action. (See City of San Diego v. San Diegans for Open Government (2016) 3 Cal.app.5t...

Excerpt: ...ttorney letter exonerated Plaintiff Portofino is not particularly material to any of Plaintiffs' claims, but the court, in its discretion, sees no need to strike it. The motion to strike the allegations at p. 19, lines 14-16, that each defendant ratified the despicable conduct of the other defendant and each defendant was the managing agent of each other defendant is GRANTED WITH LEAVE TO AMEND. These allegations are conclusions intended to suppo...

Excerpt: ...ve for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to 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 a...

Excerpt: ...st Defendant for Intentional Misrepresentation is based on her claim that the premises were not fit for human occupancy. The Court advised Plaintiff in its order of May 14, 2019 that the Eighth Cause of Action was not sufficiency pled because she did not identify any statements uttered by Defendant Ratti at any time. Plaintiff was given an opportunity to supplement her allegations. The Court agrees with Defendant's contention that Plaintiff faile...

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

Excerpt: ... is a quasi-contract claim entitled, "Goods and Services Rendered." Plaintiff Landman, doing business as The Intergan Technology Group, makes clear that his claims in the 2017 Complaint are based on essentially the same facts alleged in his earlier lawsuit against AkkuSer Oy and Jarmo Pudas (Case No. RG12645044). Plaintiff alleges that AkkuSer Oy received substantial financial benefit from work that he performed on its behalf from December 2008 t...

Excerpt: ...gment on the ground that the area where Plaintiff tripped constituted a trivial defect as a matter of law. The Court determines that Defendants have not carried their initial burden under Code of Civil Procedure section 437c(p)(2) of demonstrating that the defect that allegedly caused Plaintiff?s accident was trivial as a matter of law. It is well established that a walkway height differential of .75 inches or less, in the absence of any circumst...

Excerpt: ...iff's request is DENIED AS MOOT. The parties appear to be in agreement that further responses to these interrogatories were served shortly prior to or on the same day as Dr. Ereso's opposition to this motion. (See Pltf.'s Reply, p. 1; Def.'s Sep. St.) If Plaintiff remains unsatisfied with Defendant's responses and further responses to these interrogatories, Defendant must first make attempts to reinitiate the meet and confer and Informal Discover...

Excerpt: ...fs' entire case with prejudice. On April 24, 2019, Defendant filed its Memorandum of Costs, seeking $9,808.64 in recoverable costs. Defendant now moves the Court for entry of judgment and an order awarding costs of suit as part of that judgment, in the amount of $9,808.64. The right to recover costs of suit is determined by statute. (See CCP §§ 1032 et. seq.) The prevailing party in an action is entitled to recover costs of suit as a matter of ...

Excerpt: ...he law that is not necessary to the outcome of this case. ACERA asks the Court to modify its order to reflect that Dr. Wagner considered the complete 2010 disability retirement application. The Court's Order quotes Dr. Wagner's statements regarding the materials he did and did not consider. (See Order at p.7 lns.12-19, quoting AR394, 398, 401-402, 349-358.) The Court finds that no modification to its Order is necessary. ACERA also offers new evid...

Excerpt: ...Defendant")-after a first look by Plaintiff-with any withheld or redacted documents identified in a production log provided to Defendant detailing the reasons for any redactions or for withholding any document. Plaintiff seeks to quash or modify the July 1, 2019 amended deposition subpoena for production of business records issued by Defendant to her primary care doctor, Ron Huang, M.D. (Declaration of Maureen E. McFadden ["McFadden Dec."] Ex. A....

Excerpt: .... (Cpt, prayer for relief). On 2/26/19 Cullup filed the first amended cross-complaint against SF asserting that SF, as successor in interest to CashCall, violated the CLRA (Civil Code 17890 et seq) , that SF on its own behalf violated the Rosenthal Debt Collection Act (Civil Code 1788 et seq,) and that SF , as successor in interest to CashCall and on its own behalf violated the UCL (Bus & Prof 17200 et seq,).) (See also De La Torre v. CashCall, I...

Excerpt: ... or, if none, by the decedent's successor in interest." (C.C.P. § 377.31.) Max Carlson, decedent's guardian ad litem and son has filed a declaration attesting that Plaintiff Christa Carlson ("decedent"), who brought this action, died on June 13, 2019, and that Max Carlson is the successor in interest. The declaration complies with C.C.P. § 377.32 and includes a certified copy of the decedent's death certificate, which the court has examined. Ac...

Excerpt: ...ore was a driver. Reed was a general laundry worker. On 3/25/19 Plaintiff Gallagher dismissed his claims. The First Amended Complaint filed 9/26/17 asserts the following claims: (1) failure to pay for all time worked; (2) Failure to provide rest periods; (3) failure to provide complete and accurate wage statements; (4) failure to pay wages due at termination of employment; (5) failure to reimburse business expenses; and (6) violation of UCL. This...

Excerpt: ...on 387, "[a] nonparty shall petition the court for leave to intervene by 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...

Excerpt: ...'s Fremont facility wherein respondent "hit Tesla's security employee ... with his car" and then "fled the scene" in a "reckless manner" as he left the parking lot and (2) an incident on April 6, 2019 on public roads wherein respondent "stalked harassed and endangered" a Tesla Model 3 automobile engaged in autonomous driving testing. On April 19, 2019, Tesla filed the action. On April 19, 2019, the court entered a temporary restraining order and ...

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

Excerpt: ... 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, 318.) The court may consider all material facts ple...

Excerpt: ...PART. IT IS ORDERED THAT no later than October 22, 2019, Plaintiff shall file and serve an amended complaint. 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 discloses a complete defense." (Id.) The Court assumes "the truth of the...