Excerpt: ...emedies Act (CLRA) (Civ. Code, § 1750 et seq.). In particular, Plaintiff's Third Amended Complaint ("TAC") alleges that the label for Rite Aid's "Infants' Fever Reducer & Pain Reliever" ("Infants' Product") is designed to create a false impression that the higher-priced Infants' Product is specially formulated for infants and pharmacologically distinct from Rite Aid's "Children's Fever Reducer & Pain Reliever" ("Children's Product"), when in fac...

Excerpt: ...stitute a cause of action upon which relief may be based. (Code Civ. 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....

Excerpt: ... than 4:00 PM on Friday, July 16, 2021, 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 on Monday July 19, 2021 at 3 p.m. using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court provide appropriate invitaitons. If not timely contested, and the tentative ruling will beco...

Excerpt: ...Rey (2014) 223 Cal.App.4th 221, 236.) Defendants shall file and serve an Answer to the Complaint no later than Friday, August 6, 2021. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, July 16, 2021, 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 Jean...

Excerpt: ...utter Guide: Civil Procedure Before Trial at § 9:38, citing CCP § 1010; CRC Rule 3.1110(a) and People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726.) Defendant's Notice of Motion fails this basic prerequisite of Motion Practice. The Notice states that pursuant to CCP § 128, Defendant is seeking an order "limiting the class scope within Plantiff's First Amended Complaint." The Notice nowhere states how exactly the class scope should ...

Excerpt: ...n Defendants' memorandum of points and authorities and the declarations of Gina Teafatiller, James Bittick, and Lawrence Joseph. The Court has no record that Defendants filed a declaration by James Bittick in support of this motion on August 24, 2020 or thereafter, and Defendants have never provided provide Department 520 with a courtesy copy of Bittick's declaration (or indeed any of their other moving papers filed August 24, 2020, as required b...

Excerpt: ... Longhigh also paid Kontech $90,000.00 for shares of Kontech's common stock to become a 40% shareholder of Kontech. In a December 2016 shareholder meeting, Kontech proposed that the loan be converted into new shares of Kontech. Plaintiff claims to have rejected that proposal. Longhigh claims that it later discovered Kontech cancelled the debt owed on the loan without Longhigh's knowledge or consent. When Longhigh made demands for repayment of the...

Excerpt: ...rding whether Richard O'Farrell ("Mr. O'Farrell") was exposed to Defendant's asbestos-containing joint compound in 1976. If any party wishes to contest the tentative ruling, no later than 4:00 PM ONE on Thursday, July 15, 2021, contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. If a hearing is requested, the hearing will be conducted via Co...

Excerpt: ...dication 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 defendants either o...

Excerpt: ...RDS FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION "A party may move 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).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (20...

Excerpt: ...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." (CCP § 437c(f)(1).) "A motion for summary a...

Excerpt: ...two of the four causes of action in WM's First Amended Complaint. The Court rejects EMBUD's argument that the discovery at issue is either burdensome or oppressive. A party seeking relief from discovery based on burden must submit evidence showing the quantum of work required to respond to the discovery, and a party seeking relief based on oppression must show an intent to create an unreasonable burden or that the effect of the burden is incommen...

Excerpt: ...stitute a cause of action upon which relief may be based. (Code Civ. 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....

Excerpt: ...n ("Decedent") while at work at the Department of Industrial Relations, Division of Worker's Compensation. The complaint alleges that the decedent's suspicious death was related to the work she performed for her employer, the California Department of Industrial Relations. (Complaint at ¶10-23, 28-37.) Defendants' demurrer to the Complaint on the grounds that the workers compensation system provides Plaintiff with the exclusive remedy for recover...

Excerpt: ...HOUT LEAVE TO AMEND. Petitioner challenges the City of Oakland's issuance of Certificates of Compliance for Alameda County Assessor Parcel Nos. 019-0102-004-00, 024-0697-007-15, 025- 0701-011-00 and 025-0707-014-02 ("Subject Parcels"). The Certificates were issued during the time that the parcels were the property of the Chapter 11 Bankruptcy Estate. Petitioner alleges in the petition that he is a resident of the County of Alameda and "was also a...

Excerpt: ...r and to steal her properties. Defendants naturally deny all of Plaintiff's claims. Defendants assert that Plaintiff's properties were sold at foreclosure because she defaulted on her loan payments. Defendant has met his burden of establishing that the bank records that Plaintiff sought to obtain through her service of the deposition subpoena to Provident Credit Union are protected by his constitutional right of privacy. See Fortunato v. Superior...

Excerpt: ...jections to the Glickstein declaration are OVERRULED. At deposition, Glickstein stated he did not recall the events relevant to this case. PX 2, pp 33-34, 54.) In his declaration, Glickstein states he recalls the events relevant to this case. "It is well-established that "a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses. ... Where a declaration submitted in opposition to a motion for summary ...

Excerpt: ... Mohammed Ahmad. The operative Complaint is the Second Amended Complaint filed on March 8, 2018. The Court made rulings on two demurrers filed by Defendant to the First Amended Complaint and Second Amended Complaint. Plaintiff's daughter, 19-year-old Rusamie "Ashly" Phong Phoumy ("Ashly") was killed with a knife by Defendant's half-brother, Abdol Ali Omar, on the morning of November 30, 2014, at Defendant's business, Oakland Market. Plaintiffs as...

Excerpt: ...ol during school hours. Plaintiff alleges that Defendant improperly called the police and reported that Plaintiff would not leave the Elementary school campus. (Complaint at 18-23) Plaintiff was arrested for violation of a court order by the police, off campus. Defendant then later sent an email to other individuals at the Livermore Valley Joint Unified School District stating that Plaintiff had broken a court order and was asked to leave "multip...

Excerpt: ...e. An earlier trial date had been vacated due to the partial closure of the Alameda County Superior Court due to the Covid-19 state of emergency. Plaintiff alleges in the underlying case that individuals that she trusted to help her run her law office defrauded her over the course of years and destroyed her practice. Plaintiff alleges in this action that attorney Jacobson failed to represent her competently in the underlying case and also billed ...

Excerpt: ...presented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, July 14, 2021 at 1:30 p.m. or at a subsequent date and time set by the Clerk of Dept. 514. The subject line of the email to the Court contesting the tentative ruling must list the case name and number, and the email must identify the r...

Excerpt: ...nters. The Court further ORDERS to the parties to communicate with the Clerk of Dept. 19 as part of the meet and confer process to find dates on which the Judge deposition may be conducted in Dept. 19's jury room so that the Court may rule on objections. The Court advises the parties to agree upon multiple dates in order to ensure the availability of Dept. 19's jury room on one of them. Dept. 19's jury room is typically available at and after 2:0...

Excerpt: ... Complaint's Declaratory Relief Cause of Action. After hearing on 2/24/2021, the Court entered an Order on 4/19/2021 granting Defendant's MSA as to the other Causes of Action but requesting further briefing on the Declaratory Relief Cause of Action. (See 4/19/2021 Order at 28:9-33:3.) The Court incorporates by reference the 4/19/2021 Order, which contains a detailed statement of stipulated facts and related rulings regarding the Complaint's other...

Excerpt: ... Further, Plaintiffs submits evidence that the Settlement Agreement and the Class Notice have been revised as requested by the Court IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 p.m. on Tuesday, July 13, 2021 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 Ne...

Excerpt: ...58 are related and the latter two cases shall be reassigned to Department 514. Christopher L. Nida's motion to intervene in Case Nos. RG20- 007626 is denied but the court would entertain a motion or stipulation to consolidate the actions arising from the October 14, 2018 accident. C.C.P. section 377.60(b) allows the parent of a decedent to sue for wrongful death if the parent was dependent on the decedent and regardless of whether the decedent ha...

Excerpt: ..." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) A party may move for summary adjudication to decide whether there is no merit to causes of action, affirmative defenses, or claims for damages, whether "one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs," or some combination thereof. (Code of Civil Procedure ["CCP"...

Excerpt: ...or Court Case No. RG17862495, by failing to install suitable seats at the front-end cash registers of its California stores. The FAC also alleges that Defendants' breaches of the Smiles agreement constitute subsequent violations of Wage Order 7-2001 § 14. Previously, Defendant filed a writ petition arguing that the Court abused its discretion by denying Defendant's peremptory challenge under Code of Civil Procedure section 170.6. Plaintiffs asse...

Excerpt: ...) 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 allegations of fact inconsistent with attached documents, or alleg...

Excerpt: ...r 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 the allegations of the complaint or...

Excerpt: ... argues that the undisputed evidence shows that the delivery truck was not a proximate cause of the accident. EVIDENCE Plaintiff's objection #1 (police report) is SUSTAINED. It is not a business record. It is hearsay. Plaintiff's objection #2-10 (police officer testimony) is OVERRULED. The police officer was not qualified as an expert witness. The police officer can state his lay opinions. (Evid Code 800.) The police officer's conclusions based o...

Excerpt: ... the building manager before calling any of the contractors on the sheet. Stoneledge employee Mountain called the building manager and got no response. The emergency contact stated that tenants were to call Carson Madrona if they could not reach the building manager. Stoneledge employee Mountain did not try to call Carson Madrona. Stoneledge employee Mountain called Perez of DP Electric. DP Electric employee Perez tried to fix the electrical prob...

Excerpt: ... to Plaintiff. (Declaration of Peter Rehon at ¶ 6, Exhibit 1.) Defendant was to provide further verified responses no later than November 10, 2020. The court also previously granted Plaintiff's request for issue, evidentiary and monetary sanctions on March 3, 2021 and awarded monetary sanctions in the amount of $13,372.50 and to pay $1,500 in sanctions to the court. (Declaration of Peter Rehon at ¶¶ 3-17.) Plaintiff represents that no such res...

Excerpt: ... defendants' moving papers are true and correct copies of the documents executed between the parties. The court therefore grants judicial notice of the documents and considers the merits of arguments presented. The operative First Amended Complaint filed in the present case asserts five causes of action: 1) Declaratory Relief- Shareholders Agreement; 2) Breach of Contract- Employment Agreement; 3) Breach of Contract- legal Fees Obligation for Mar...

Excerpt: .... LEGAL STANDARD A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. 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...

Excerpt: ...in their declarations, points and authorities in opposition being stricken. In addition, the motion of Plaintiffs Sharif Sawires and Nina Birnbaum for entry of judgment pursuant to the terms of the parties' Stipulation to Settle, executed on January 12, 2021 and approved by the Court on February 17, 2021, pursuant to CCP § 664.6, is CONTINUED to September 10, 2021, at 2:00 p.m., in Department 520. The Court has reviewed the parties' voluminous s...

Excerpt: ...costs of up to $25,000, a service award of $5,000 for the class representative, a net PAGA payment of $18,750, and settlement administration costs of up to $6,000. After these expenses of approximately $154,750, the class would get $145,250. The average payout per class members would be $410. The proposed class notice form and procedure are adequate. There were no opt outs and no objections. (Kruckenberg Supp Dec.) The proposed class is appropria...

Excerpt: ...nsel must file the required declaration." Counsel must file a declaration with the required information or direct the court to a previously filed declaration with the required information. Assuming that counsel provides the CCP 382.4 information, then the order would be: The motion of plaintiffs for final approval of class action settlement is GRANTED. The motion of plaintiffs for approval of fees and costs and award is GRANTED. APPROVAL OF THE S...

Excerpt: ...ry basis for maintaining its cause of action for the second cause of action for negligence or the third cause of action for breach of mandatory duty. Except as otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Cal. Gov't Code § 815(a).) Plaintiff must provide a statutory basis for his claim. (East...

Excerpt: ...nt administration costs of up to $15,000, and a net PAGA payment of $37,500. After these expenses of approximately $435,833, the class would get $564,167. The average payout per class member would be $1,007. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analysis as required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116. The scop...

Excerpt: ...el for Plaintiff has provided a declaration in support of the motion that provides the information required by CCP 382.4 regarding the absence or presence of a relationship between counsel and the residual beneficiary. Counsel for Plaintiff had a prior employment relationship with Centro de la Raza and currently has a co- counsel relationship with Centro de la Raza. The payment of residual funds to Centro de la Raza creates an appearance of impro...

Excerpt: ...DENIED. The motion for summary judgment cannot be granted because Plaintiffs have not met their initial burden of making a prima facie showing that each element of the cause of action has been proved. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Although Plaintiffs have provided the Court with a large volume of evidence in the form of Defendant's responses to written discovery and pleadings and orders in the earlier filed Pro...

Excerpt: ...cretion finds that it would not be in the interests of justice to grant a preference in trial setting absent some evidentiary showing that there is substantial medical doubt of Mrs. Boccio's survival beyond six months or that her interests will be prejudiced if trial is not set to commence in 120 days. (See CCP § 36(d).) However, the Court would be inclined to set a non-preferential trial date in this action for a date prior to the end of 2021, ...

Excerpt: .... "The general rule of motion practice ... is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) "A trial court has discretion to consider new evidence in reply papers supporting a summary judgment motion as long as the opposing party has notice and an opportunity to respond. ... Evidence which is used to fill gaps in the original evidence created by the opposition is particularly appro...

Excerpt: ... party Tami Mason, the daughter the decedents and the representative of their estate, has "specially appeared" for the purpose of seeking a dismissal. Mason claims the mechanic's lien recorded against the property is interfering with her ability to administer her parents' estate. (See Mason Decl. paras. 2-5.) Mason's motion is denied because Mason has not sought to intervene and lacks standing as a non-party. (Lohnes v. Astron Computer Products (...

Excerpt: ...he attorneys advise the Court that they were attempting to settle the case informally prior to November 17, 2020. After the Court ordered the parties to submit their claim to arbitration, the attorneys then spent months attempting to select an arbitrator. Plaintiff's attorney finally contacted JAMS on March 16, 2021 and commence the arbitration. On April 19, 2021, the parties advised JAMS that they had agreed to have the matter heard by retired f...

Excerpt: ...ion is one arising from a protected activity, i.e., an act in furtherance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether the opposing party has demonstrated a probability of prevailing on the claim. The opposing party demonstrates this by showing the challenged pleading is legally sufficient and supported by a suff...

Excerpt: ...s that the confidentiality clause is substantively unconscionable, citing Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1065-1067. However, the reason the Ramos court found the confidentiality clause contained in that arbitration agreement to be substantively unconscionable was that it prevented the plaintiff from gathering evidence to present her case. Here, by contrast, the confidentiality clause in Aerotek's arbitration agreement provide...

Excerpt: ...tals employee and defendant Emil Medina negligently unloaded the beam such that it struck the plaintiff who was standing nearby. Plaintiff propounded written discovery on defendant, including Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, on July 29, 2019. On September 10, 2019, defendant served unverified responses to the foregoing discovery with the notation "verifications to follow." On March 8, 2021, ...

Excerpt: ...e 17, 2021, Plaintiffs' counsel filed this motion seeking relief from the summary judgment order and the judgment pursuant to Code of Civil Procedure section 473(b). Plaintiffs' counsel asserts that on April 6, 2021, he began to experience severe flu symptoms that lasted for "several days", and as a result he was unable to check the Court's tentative ruling on Defendant's motion for summary judgment, contest the tentative ruling, or appear at the...

Excerpt: ...ablish that Plaintiff's discovery motions were granted due to their mistake, inadvertence, surprise, or excusable neglect. Plaintiff's attorney caused the subject requests for admission to be served on Defendants on September 25, 2020. The discovery was served directly on Defendants because their attorneys successfully moved to be relieved as their counsel days before. Defendants did not serve any responses by the due date of October 30, 2020, no...