Excerpt: ...ver, Plaintiffs have waived their Third and Fourth Causes of Action with respect to the MSA. (Opp. MSA at p. 1, fn. 1.) Therefore, the only issue remaining to be decided by this Court is whether Defendant is entitled to summary adjudication of Plaintiffs' punitive damages claim. The Court finds that Plaintiffs' written discovery responses are "factually devoid" with respect to Plaintiffs' punitive damages claims, thereby shifting the burden of pr...

Excerpt: ...the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." (CCP § 1008(a).) "The party making the application shall state by affidavit what application was made before, when and to what judge, what order or dec...

Excerpt: ...ny order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (CCP § 2031.060(b).) As pertinent here, "[t]his protective order may include, but is not limited to, one or more of the following directions: . . . [t]hat all or some of the items or categories of items in the demand need not be produced or made available at all[,] . . . [and/or] [t]hat the i...

Excerpt: ... $7,500 for the class representative, a net PAGA payment of $22,500, and settlement administration costs of $15,000. After these expenses, the class would get $601,916. The average payout per class member would be $952. The settlement was mediated with the assistance of Bob Kaplan. The court gives "considerable weight to the competency and integrity of counsel and the involvement of a neutral mediator in [concluding] that [the] settlement agreeme...

Excerpt: ...500 for the class representative, a net PAGA payment of $7,500, and settlement administration costs of $7,000. After these expenses, the class would get $151,333.33. The average payout per class members would be $2,101. The settlement was mediated with the assistance of Jeff Winikow. The court gives "considerable weight to the competency and integrity of counsel and the involvement of a neutral mediator in [concluding] that [the] settlement agree...

Excerpt: ...joint tortfeasor of Lorillard, where this Court has already conclusively adjudged in Berg v. Alta Bldg. Materials, RG 17-84928 (the "Prior Action," an asbestos torts action to which all of Plaintiffs, Defendant and Lorillard were parties, that Defendant is not a tortfeasor with respect to Plaintiffs or a joint tortfeasor with respect to Lorillard. Plaintiffs may file and serve an amended Complaint no later than Friday, July 31, 2020. ALLEGATIONS ...

Excerpt: ...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 demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint contains a...

Excerpt: ...se findings "signified a material weakness," and that omitting them would lead to a material misstatement in Defendant's financial statements and thus would violate the law. (See First Amended Complaint, paragraphs 19-20.) Shortly after submitting the audit report, Plaintiff was notified on September 22, 2016 that his position would be eliminated effective December 31, 2016, and he was in fact officially terminated on January 3, 2017. (See First ...

Excerpt: ...20 and California Education Code sections 44805, 44807, 48290, 49005(a) and 48900(2)(1) on the grounds that Plaintiff has not adequately alleged a statutory basis for its cause of action. In reviewing the sections cited by Plaintiff, the court agrees with Defendant that Plaintiff has not cited a statutory basis for her claim. The statutes referenced do not relate to the circumstances involved in the First Amended Complaint. The court provides Pla...

Excerpt: ...amages against Martinelli because Plaintiffs do not have evidence that Martinelli acted with malice, oppression, or fraud. STANDARD OF LAW "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 acti...

Excerpt: ...ed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Cal. Civ. Code § 1794.) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover cos...

Excerpt: ...ction for liability for negligence of public employee, Third Cause of Action for dangerous condition of public property, and Fourth Cause of Action for abatement of public nuisance on the grounds that Plaintiffs have not pleaded sufficient facts to state these causes of action pursuant to the Government Code. Defendant also demurs to these causes of action on the grounds that it is immune from liability pursuant to the Government Code. STANDARD O...

Excerpt: ... the Parties, finding Plaintiff twenty percent liable and Defendant eighty percent liable. Plaintiff now seeks to recover the attorney's fees she incurred following Defendant's denial of two RFAs propounded by Plaintiff. Plaintiff asserts Defendant's denial was unreasonable given the evidence available to Defendant and that -- but for Defendant's denials -- Plaintiff would not have been required to prove Defendant was liable during the trial. The...

Excerpt: ...United States subsidiary, which then sold the machine to 24 Hours Fitness, which then had the machine at a fitness center in Walnut Creek, California, where it injured plaintiff. Technogym S.p.A, does not own property or operate directly in California. (Casoni Dec.) The United States subsidiary buys exercise equipment in bulk, maintains inventory, and then sells it to customers. (Cool Dec.) OVERVIEW OF LAW The U.S. Supreme Court recognizes two ty...

Excerpt: ...ong Kun Choe ("Choe") for damages suffered as a result of a fire starting on the roof of the church building in which Plaintiffs lived. In one of the four consolidated cases, RG19-036589, Choe sued Tae Son Lee ("Lee"), the CEO and President of BRS and WRC, for equitable indemnity, defamation, fraud, and intentional infliction of emotional distress. In his First Cause of Action for Equitable Indemnity, Choe alleges that he had no role in performin...

Excerpt: ...because the court finds the settlement offer to be reasonable. A party is responsible for making her or his own decision to prosecute or defend a case. Substantively, defendant argues that plaintiff Kalah should accept an insurance policy limits offer of $15,000 because defendant filed for bankruptcy and the bankruptcy judge's order of 5/9/19 states "[Plaintiff Salah] may not enforce any judgment personally against the debtor [defendant Del Toro]...

Excerpt: ...efendant until June 26, 2020. (Cal. Civ. Proc. Code § 1005(b) ["All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing."].) Thus, Plaintiffs' opposition was untimely and shall not be considered. However, even if the Court considered Plaintiffs' opposition, the Court's ruling would remain the same. STANDARD OF LAW "The court may, upon a motion . . . o...

Excerpt: ... a C.C.P. section 998 offer to compromise of $329,999. (Mariveles Decl., para. 10.) Plaintiff now seeks to recover costs as the prevailing party in this matter. Defendant objects to certain costs, as discussed in detail below. LEGAL STANDARD In awarding costs, a trial "court's first determination ... is whether the statute expressly allows the particular item, and whether it appears proper on its face. If so, the burden is on the objecting party ...

Excerpt: ..., individually, as Executor of Decedent's Estate and as Successor in Interest of Decedent; Peter Marinakis, individually and as Successor in Interest of Decedent; and Lee Marinakis, individually and as Successor in Interest of Decedent. Plaintiffs' plead causes of action for: Negligence - Wrongful Death; Negligence - Survival Action; Neglect and Abuse (under the Elder Abuse and Dependent Adult Civil Protection Act); and Violations of Business and...

Excerpt: ... after it assumed ownership of the subject property during which defendant FPI continued as the property manager and Plaintiffs contention that they are aware of specific facts which could be alleged so as to sustain an exemplary damages claim and inasmuch as this is Defendant Priya Harbert's first Motion to Strike, the motion to strike exemplary damages is GRANTED WITH LEAVE TO AMEND as to defendant Priya Harbert. STANDARD OF LAW "The court may,...

Excerpt: ...th 83, 91. In her opposition brief, Plaintiff argues that the Agreement is unconscionable. For the Court to refuse to enforce an arbitration agreement on the grounds of unconscionability, the party opposing arbitration must demonstrate that the agreement is both procedurally and substantively unconscionable. (See Armendariz, supra, 24 Cal.4th at 114.) Procedural and substantive unconscionability are determined on a sliding scale; the greater degr...

Excerpt: ..."ppb") average acrylamide concentration by weight will satisfy the Office of Environmental Health Hazard Assessment's ("OEHHA") No Significant Risk Level ("NSRL") of 0.2 µg/day of acrylamide for cancer and Maximum Allowable Dose Level ("MADL") of 140 µg/day of acrylamide for reproductive toxicity for the products at issue. (See https://oehha.ca.gov/proposition-65/chemicals/acrylamide.) There was no explanation in the Motion or the [Proposed] Co...

Excerpt: ...ly 14, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Tuesday, July 7, 2020, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of ...

Excerpt: ...o his counsel and use them in this litigation. To the extent that Plaintiffs seek "clarification" as to Chodniewicz's right to review Art.com communications and documents, the Court determines that Plaintiffs are seeking an advisory opinion on an issue that is not yet ripe for adjudication. Plaintiffs have not provided any evidence that they have sought any such communications or documents through an authorized method of discovery, and that Defen...

Excerpt: ...ikes, that a Peloton manager instructed Plaintiff to speak English with Peloton customers, that Plaintiffs assembled Peloton bikes in the warehouse, that Plaintiff delivered Peloton bikes on a schedule set by Peloton, and that plaintiff set up Peloton bikes in customer homes. (4AC, para 44-61.) The 4AC asserts that Peloton and other companies were joint employers and client employers (4AC, para 17, 18.) The 4AC asserts a variety of Labor Code cla...