Excerpt: ...sting party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. If contested, THE HEARING WILL BE CONDUCTED ON TUESDAY, APRIL 13, 2021 AT 9:00 a.m. IN DEPT. 18 VIA COURTCALL. If not timely contested, and the tentative ruling will become the final order of the Court. The tentative ruling is as follows: Defendant Sequoia Ventures, Inc.'s formerly known as Becht...

Excerpt: ...provided with the option to purchase 11 of the total 43 townhome units that were to be constructed. (Complaint at ¶¶ 9-26.) DEFENDANTS' BURDEN OF PROOF A motion for summary judgment shall be granted if all the papers submitted show that 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 Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show e...

Excerpt: ...ays) said party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentative order. IF CONTESTED, the hearing will be held via COURTCALL on Tuesday, April 13 per above order. Counsel and self-represented parties are required to appear via COURTCALL. Contact CourtCall, an independent vendor, by calling (888) 882-6878, or fax a service request to (888) 882-2946. The vendor ch...

Excerpt: ...commence on August 9, 2021 at 8:30 a.m. in Department 18. STANDARD OF LAW "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the liti...

Excerpt: ...rea Diner, Inc., RG15797837, (2) Alfaro v. Bay Area Diner, Inc., RG15797839, (3) Benlamlih v. Bay Area Diner, Inc., RG15797841, and (4) Guy v. Bay Area Diner, Inc., RG16843879. Any given order applies only in the case in which the order is entered, but an order in one case should be instructive regarding the related cases. PROCEDURE Defendants seeks judgment on the pleadings for all or part of the claims against them. As a matter of procedure, th...

Excerpt: ...rea Diner, Inc., RG15797837, (2) Alfaro v. Bay Area Diner, Inc., RG15797839, (3) Benlamlih v. Bay Area Diner, Inc., RG15797841, and (4) Guy v. Bay Area Diner, Inc., RG16843879. Any given order applies only in the case in which the order is entered, but an order in one case should be instructive regarding the related cases. PROCEDURE Defendants seeks judgment on the pleadings for all or part of the claims against them. As a matter of procedure, th...

Excerpt: ...urrer to the First, Fifth, and Sixth Causes of Action with leave to amend. The Court overruled the demurrer as to Plaintiff's other claims. Plaintiff voluntarily withdrew the Sixth Cause of Action for Partition when she filed her First Amended Complaint on February 11, 2021. The Court notes at the outset that Defendant did not meet his burden of establishing that he made a reasonable and good faith attempt to resolve the issues raised in the demu...

Excerpt: ...mises Liability and Plaintiff has neither opposed this MSJ nor sought leave to vacate the deemed Admissions and serve Responses thereto. This tentative ruling will automatically become the Court's final order on Friday, April 9, 2021 unless, by no later than 4:00 p.m. on Thursday, April 8, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, t...

Excerpt: ...Plaintiffs' Complaint was filed on 8/5/2015. Plaintiffs' Second Amended Complaint ("SAC") was filed on 2/22/2017. Trial is set to commence on 5/24/2021, and discovery in this action has closed. LAW RE: MOTIONS FOR LEAVE TO AMEND "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of the procee...

Excerpt: ...November 30, 2020. Although the November 30, 2020 trial date was also vacated, pursuant to the Court's order entered November 16, 2020, no language in the November 16, 2020 order indicated that discovery would remain open, or that the deadlines for any discovery motions were vacated or would be based on any subsequently set trial date. Therefore, the last day on which this motion could be heard, pursuant to Code of Civil Procedure section 2024.03...

Excerpt: ...ion of her individual wage and hour claims. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, April 2, 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 Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the part...

Excerpt: ... than 4:00 PM on Friday, April 2, 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 Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely conteste...

Excerpt: ...n to enforce settlement agreement filed by Civic Justice, LLC and DeNova Homes, Inc. The Court has reviewed its earlier order dated June 26, 2020. The Court notes that it determined that the May 23, 2019 agreement is valid and enforceable. Despite this determination, Defendant and Cross- Complainant Hardwick persists in his argument that the agreement was illusory or procured by misrepresentations made by the opposing parties and/or their attorne...

Excerpt: ..."at fault" for the accident on December 26, 2019. The Court finds that Defendant's second further response to request no. 4 is sufficient. The request is inherently ambiguous and indefinite in that it does not ask Defendant whether she contends that she was solely at fault or shares some comparative fault. When considering the purpose of requests for admission to put certain matters to rest prior to trial, the Court cannot imagine how the decisio...

Excerpt: ... party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (CCP § 2017.010.) "[S]tatutes governing discovery 'must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established...

Excerpt: ...s GRANTED. Counsel should not have instructed his client not to answer the questions posed by Plaintiffs' counsel. Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1259, does not preclude Plaintiffs' attorney from asking the questions. However, the Court notes that it is not a common tactic to question a party repeatedly about her ability to tell the truth during a deposition. There are appropriate sanctions for failing to give truthful depo...

Excerpt: ...e suffered by Plaintiffs. (See Rezke's Separate Statement of Facts ("SSF") Nos. 6-7, 9, 11-12, 14, 28-29, 32, and 36; Plaintiffs' response; and the evidence cited in support. See particularly the declaration of Plaintiff Derrick Gaines at paragraphs 4-10, the declaration of Plaintiff Jennifer Gaines at paragraphs 3-14, and the declaration of David Levin at paragraph 2. See also Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922, holding that th...

Excerpt: ... 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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, ...

Excerpt: ...aintiffs. As to Plaintiffs' First Cause of Action for "Race Discrimination - Disparate Treatment", BART's motion is GRANTED as to each of the four Plaintiffs (Nebiyat Arega, Terry Carney, Darian Caston, and Erik Freeman.) For the purposes of this motion, the Court will assume that Plaintiffs have established a prima facie case of race discrimination, because they are members of a protected class and did not receive a promotion to the Cash Handler...

Excerpt: ...owledges, that is NOT a basis to overrule a demurrer. (See Code of Civil Procedure section 430.41(a)(4).) Plaintiffs cite cases holding that a person or entity providing security services for a business operator, like ANS, owes a duty of care to the business's customers to protect them while they are on the business premises. (See, e.g., Marois v. Royal Investigation & Patrol Inc. (1984) 162 Cal.App.3d 193, 200.) That duty may extend to land adja...

Excerpt: ...aint. On 2/25/21, plaintiff filed an application to amend the complaint and attached a third amended complaint. The court denied this application. The court addresses the issues to the extent it can in the absence of the relevant complaint. Several of the issues can be decided as a matter of agreement or as a matter of law. The complaint that is not in the court record appears allege claims for (1) sexual assault/battery and for intentional infli...

Excerpt: ...e operative Fourth Amended Complaint filed on January 19, 2021 alleges two causes of action against Defendants for negligence and negligent supervision. Plaintiff alleges the following facts to support of her first cause of action for negligence: "47. Defendants, superintendent McPhetridge, Daniel Hurst, Daniel Kruger, Dorothy Ault, Jody McCarthy, Zarina Tillman, Kristen Zazo and unknown DOES 1-50 had an affirmative duty to provide supervision of...

Excerpt: ...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.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) For the Court ...

Excerpt: ...000 to Kho. (OTO, L.L.C. v. Kho (2010) 8 Cal.5th 111, 119-120.) On 9/15/15, OTO filed an appeal from the Labor Commissioner's order, decision, and award ("ODA") dated 8/25/15. Following various appellate proceedings, on 8/29/19, the California Supreme Court in the Arbitration Case found the superior court had set vacated the ODA in error and remanded the case back to the trial court. (OTO, L.L.C. v. Kho (2010) 8 Cal.5th 111, 138-141.) On 1/25/21,...

Excerpt: ... necessarily incurred by the defendant." (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131.) The party filing a motion to tax has the burden of showing that an item is not properly chargeable or is unreasonable. The Court's first determination is whether the statute expressly allows the particular cost item. The Court's second determination is whether the amount of the cost is unnecessary or unreasonable. In resolving the second issue, the obj...

Excerpt: ...tion of John Vodnick at Exhibit 1.) Further, if the computer at issue is the property of Saybrook and not TCS Education System and Plaintiff is aware of this fact, then the appropriate party to serve the request to is Saybrook. Additionally, as defendant Nathan Long, although the opposition discusses his response, both the notice of the motion and discovery requests are not directed to defendant Nathan Long, therefore the court does not rule on a...

Excerpt: ...RDS total monetary sanctions in the amount of $930 payable by defendant Anusha Mandadi ("Defendant") to Plaintiff. Defendant shall serve on Plaintiff no later than Wednesday, May 5, 2021 further verified responses to the SROGS, FROGS and RFAS. Defendant shall pay the monetary sanctions ordered above to Plaintiff no later than thirty (30) days after the date on which Plaintiff serves and files a Notice of Entry of the Final Order on these two moti...

Excerpt: ...pplemental declaration addressing the deficiencies in the moving papers described below no later than Monday, April 26, 2021. Plaintiff shall provide a courtesy copy of any such supplemental declaration to Dept. 19 by email on the date of filing. Plaintiff's Complaint alleges that defendant Frito-Lay, Inc. ("Defendant") manufactured, sold and/or distributed certain "Gamesa" brand cookies ("cookies"), which Plaintiff alleges contain acrylamide, a ...

Excerpt: ...f shall serve full and complete verified responses to the Written Discovery Requests to the extent set forth hereinbelow no later than Wednesday, May 5, 2021. Further, Plaintiff shall serve on Defendants copies of all documents responsive to the RFPDS in Plaintiff's possession, custody or control after a reasonable and diligent search, and only to the extent that any such documents have not already been produced by Plaintiff in this action, no la...

Excerpt: ...tiff in his SAC had to allege specific facts showing that Defendants increased the inherent risks of the sport by allowing conduct by participants "so reckless as to be totally outside the range of the ordinary activity" in the sport at issue. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1011; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162.) Plaintiff's newly alleged facts still do not allege more than mer...

Excerpt: ...rposes of this action, they were also the employees of Sonesta and therefore Sonesta is liable for their claims based on harassment and retaliation in violation of the Fair Housing and Employment Act ("FEHA") and Labor Code § 1102.5. FMC had contractual relationship with Sonesta in which FMC provided temporary custodial workers at a hotel in Milpitas operated by Sonesta. (See SSF No. 10-13.) Under FEHA, an individual paid by a temporary service ...

Excerpt: ...o Del. Code Title 8 § 278 ("Del. § 278") , is amended after the expiration of the three-year period to name the dissolved Delaware corporation as a DOE defendant. Plaintiff may serve and file a supplemental opposition brief addressing this question no later than Friday, April 9, 2021, and Defendant may file a supplemental reply brief no later than Friday, April 16, 2021. Courtesy Copies of the supplemental briefs shall be provided to the Court ...

Excerpt: ...vincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that sat...

Excerpt: ...ake any supplemental filings at least 5 court days before the hearing. CLASS RELEASE The scope of the release for the absent class members is overbroad and arguably unlawful. (Settlement Agt para 8.) The scope of the release for the absent class members cannot include a Civil Code 1542 release or an equivalent release. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 640, 645 [trial court would not approve a Civil Code 1542 rel...

Excerpt: ...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 the plaintiff o...

Excerpt: ...on, 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: ...llectively "Defendants") provided business insurance to Plaintiff during the period from 1998-2012. On 8/9/12, Plaintiff filed this case. Plaintiff seeks to recover policy benefits for lawsuits and claims against it arising from alleged defects in Plaintiff's plumbing components involving nine different lawsuits or projects. Plaintiff claims that Defendant renewed Plaintiff's policy in 2009/2010 even though it did not have enough money to pay cla...

Excerpt: ...'s ("Decedent") use of Scotts Turf Builder containing vermiculite contaminated with or potentially contaminated with asbestos in California. Consistent with this Order, Plaintiff may serve and file a supplemental opposition no later than Friday, May 28, 2021, and Defendant may serve and file a supplemental reply no later than Friday, June 4, 2021. Courtesy copies of any supplemental papers must be submitted to Dept. 18 by email on the date of ser...

Excerpt: ...ng interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) [t]he proposed sealing is narrowly tailored; and (5) [n]o less restrictive means exist to achieve the overriding interest." (Cal. Rules of Court, Rule 2.550(d).) MOTION TO SEAL Plaintiff seeks an order sealing Exhibits 7 (along with Exhibits 9, 13, and 14 attached thereto), 8, 9, 13, 14, ...

Excerpt: ...hibited by another law". Code of Civil Procedure § 340.1(b)(1) became effective January 1, 2020. Plaintiff's claims accrued approximately 40 years ago. The Court determines that Plaintiff's request for treble damages, as against the District, is barred by Government Code § 818, as well as the presumption against retroactive application of new or revised statutes. Government Code § 818 provides that a public entity is not liable for punitive da...

Excerpt: ...cember 31, 2020. Simply Re-Creating Enterprises, Inc. was required to submit an affidavit of the custodian of records that complies with the requirements set forth in Evidence Code § 1561. See CCP § 2020.430(a)(2). Although the company apparently provided the code-compliant affidavit on March 11, 2021, more than two weeks after being served with the motion to compel, the Court nevertheless has the authority to grant the motion to compel and awa...

Excerpt: ...21.) Plaintiffs later learned from decedent's former employer on May 25, 2018 that decedent's insurance and retirement benefits had already been disbursed. (See First Amended Complaint, paragraph 40.) In addition, the probate court's order on final distribution in decedent's probate case (Case No. RP17- 850469), which court records indicate was issued on September 26, 2018, contained no provision concerning decedent's insurance or retirement acco...

Excerpt: ...ght to cancel the three Deeds of Trust from the three loans. This case is pending. In Orange Coast Title Company of Southern v. Does, RG19014321, the escrow company alleges that unidentified persons represented themselves to be Bui and Nguyen and fraudulently obtained loans. This case is pending. In this case, Evergreen v Real Advantage, RG20069506, Evergreen alleges that RATIC breached the title insurance agreement by not proving a defense in Bu...

Excerpt: ...08) 164 Cal.App.4th 748, 759-762.) In addition, although the District argues that it has somehow relied to its detriment on language in a prior version of Government Code § 905(m) enacted in 2009, which exempted from claims filing requirements suits for childhood sexual abuse occurring after 2009 only, the District offers no explanation as to how it relied on that prior version of § 905(m). It is also unclear to the Court how the that premise c...

Excerpt: ...ach other and were "in part, acting within the scope and authority of such relationship". In paragraph 5 of Plaintiff's Second Amended Complaint, he alleged that Defendants "were, in part, acting within the scope and authority of such relationship, and in part, acting outside the scope and authority of such relationship". The purpose of the sham pleading doctrine is to prevent a plaintiff from omitting facts from an amended pleading that made a p...

Excerpt: ...acity. Any harm alleged was suffered by premises owner H. Marshall Properties LLC ("HM") and/or H.A. Marshall Investments Inc. ("HAM"), which operates a business at the premises, not Mr. Marshall (the CEO of HM and HAM) in his individual capacity. As to the Ninth Cause of Action for Intentional Infliction of Emotional Distress, Plaintiffs have not alleged any extreme and outrageous conduct by Defendants intended to cause Mr. Marshall severe emoti...

Excerpt: ...ice. On 7/11/17, EDMUD adopted Resolution 35045-17, which set water rates for fiscal years 2018 and 2019. The rates went into effect 7/12/18. On 6/11/19, EDMUD adopted Resolution 35142-16, which set water rates for fiscal years 2020 and 2021. The rates went into effect 7/1/19. (Collectively the Water Rates.") The First Amended Complaint asserts that the adoption and continuing imposition of the Water Rates are unconstitutional under Cal. Const, A...

Excerpt: ...rom (1) the sexual assault witnesses, and (2) the Fremont Administrator (sic). (Plaintiffs' MPA in Opposition to Defendants Motion for Protective Order, at 2:2-7.) Based on this understanding, the court rules as follows: 1. Defendant's Motion for Protective Order is DENIED as to all witnesses to the alleged sexual assaults and all witnesses who reported incidents of sexual assault to the Parkview staff. The court begins its analysis by noting tha...

Excerpt: ...P § 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. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bear...

Excerpt: ...a matter of law. (Code Civ. Proc. § 437c, subd. (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. ...

Excerpt: ...ow file a motion with evidence and additional authority and seek a formal court order on the same topics. GENERAL Regarding SI 55, 62, and 68, Tesla asserts that plaintiff already has the information or already has the relevant data and that plaintiff cannot through a discovery request require Tesla to cross-reference data that is already in plaintiffs' possession. Factually, Tesla states it has complied with the order of 1/26/21, which stated "I...

Excerpt: ...68 (POC Response Re February 17, 2021 Wong Deposition), 181 (MHC Response re February 10, 2021, Taetz Deposition) and Request No. 181 (MHC Response re February 10, 2021, Taetz Deposition), and Request No. 199 (MHC Response re February 17, 2021 Wong Deposition), as follows: 1. As to Requests Nos. 163, 168, 181, and 198, Defendants' are to produce texts, emails or other form of electronic communication sent to either Mr. Wong or Ms. Taetz during th...

Excerpt: ... the complaint or by matters subject to judicial notice, the putative class action may be defeated by a demurrer or motion to strike." (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1062; Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 210.) The motion is a motion to not certify the class. "The 'proper legal criterion' for deciding whether to certify or decertify a class is simply whether the class meets the r...

Excerpt: ...llectively "Defendants") provided business insurance to Plaintiff during the period from 1998-2012. On 8/9/12, Plaintiff filed this case. Plaintiff seeks to recover policy benefits for lawsuits and claims against it arising from alleged defects in Plaintiff's plumbing components involving nine different lawsuits or projects. Plaintiff claims that Defendant renewed Plaintiff's policy in 2009/2010 even though it did not have enough money to pay cla...

Excerpt: ...ppose. Creekview offers evidence that each of the named plaintiffs signed a pre-dispute arbitration agreement when they were hired. Those agreements purport to waive the right to arbitrate disputes on a class-wide or representative basis. The agreements mandate arbitration for all disputes "arising out of or relating to" the Plaintiffs' employment with Defendants, including "all statutory, contractual and/or common law claims arising from or rela...

Excerpt: ...ponses and the tolling of the deadline pursuant to the request for an IDC under Local Rule 3.31 and the Code of Civil Procedure section 2016.080. SPECIAL INTERROGATORIES, SET TWO The court notes that Plaintiff's opposition to the motion to compel does not address the specific deficiencies in her responses to Special Interrogatories, Set Two, Nos. 44, 45, 47, 48, 50, 51, 53 and 54. The court therefore GRANTS the motion to compel as to Special Inte...

Excerpt: ... of the intent to contest the tentative order. IF A HEARING IS REQUESTED, the hearing will most likely be conducted on Wednesday, April 7, 2021 at 3:00 p.m. in Dept. 19. The Clerk of Dept. 19 will advise the parties of the actual hearing date if the Tentative Ruling is contested. Any requested hearing will most likely be conducted using the Blue Jeans Network. If a hearing is requested, the Court will advise the parties of the manner in which the...

Excerpt: ...ely be conducted on Wednesday, April 7, 2021 at 3:00 p.m. in Dept. 19. The Clerk of Dept. 19 will advise the parties of the actual hearing date if the Tentative Ruling is contested. Any requested hearing will most likely be conducted using the Blue Jeans Network. If a hearing is requested, the Court will advise the parties of the manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ru...

Excerpt: [email protected] and provide notice to all counsel of the intent to contest the tentative order. IF A HEARING IS REQUESTED, the hearing will most likely be conducted on Wednesday, March 31, 2021 at 3:00 p.m. in Dept. 19. The Clerk of Dept. 19 will advise the parties of the actual hearing date if the Tentative Ruling is contested. The factual context of this case is a failed restaurant project. Plaintiff Chris Pastina sued multiple par...

Excerpt: ...e 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. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-6...

Excerpt: ... evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable." (Richtek USA, Inc. v. uPI Semiconductor Corporation (2015) 242 Cal.App.4th 651, 660.) "[A] court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that...

Excerpt: ...9, 996.) Plaintiff Portobello Residential Owners Association (the HOA) interviewed CIDology about whether it could do certain work regarding construction management. CIDology represented it could do the work. (Cpt, para .) On 1/16/17, the HOA and CIDology entered into a contract. (Cpt, para 18, Exh 1.) Following the work, there were water intrusion issues. (Cpt, para 22-24.) On 1/1/18 the HOA and CIDology entered in to a second contract regarding...

Excerpt: ...rt's final order on Friday, March 26, 2021 unless, by no later than 4:00 p.m. on Thursday, March 25, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented 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 a date...

Excerpt: ... class representative, and settlement administration costs of up to $5,000, and a net PAGA payment of $7,500. After these expenses of approximately $101,429, the class would get $68,371. The average payout per class members would be $1,005. 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. (20...

Excerpt: ...oyees in the PAGA claim. (Agreement para 51.) Under PAGA, a private plaintiff brings an action on behalf of the LWDA. The plaintiff does not represent the "aggrieved employees" and therefore cannot release claims on their behalf. The settlement agreement can release only the claims of the named plaintiff and the claims of the LWDA, which are asserted by the named plaintiff as proxy or agent of the LWDA. After ZB N.A. v. Superior Court (2019) 8 Ca...

Excerpt: ...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 owed or did n...

Excerpt: ...tion 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. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving f...

Excerpt: ...EQUESTED, the hearing will be conducted on Tuesday, March 30, 2021 at 9:00 a.m. in Dept. 18 by COURTCALL. If not timely contested, and the tentative ruling will become the final order of the Court. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND 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 �...

Excerpt: ...ments of this chapter have been satisfied. ?The court, in its discretion, may award the prevailing party on such a motion, his or her attorney's fees and costs in bringing or opposing the motion." Consistent with Civil Code 930(b), the court ORDERS that this case is stayed until plaintiff completes the Civil Code 910 pre-litigation process and defendant has the opportunity to inspect, offer to repair, and repair. (Civil Code 916-925.) If the Civi...

Excerpt: ...P § 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. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bear...

Excerpt: ...rom (1) the sexual assault witnesses, and (2) the Fremont Administrator (sic). (Plaintiffs' MPA in Opposition to Defendants Motion for Protective Order, at 2:2-7.) Based on this understanding, the court rules as follows: 1. Defendant's Motion for Protective Order is DENIED as to all witnesses to the alleged sexual assaults and all witnesses who reported incidents of sexual assault to the Parkview staff. The court begins its analysis by noting tha...

Excerpt: ...lack v. FCI Lender Services, Inc., et al. (Case No. RG18913562). The Flacks allege that their property was sold at a trustee's sale after the Court in that case denied their motion for preliminary injunction. Lapham alleges that the property was lost because the Flacks ignored his advice. Cross-Defendants' demurrer is sustained because they have adequately shown that the litigation privilege bars Cross-Complainant's Second Cause of Action for Abu...

Excerpt: ... called the Rotunda Building, across the plaza from Oakland City Hall. In particular, the FAC's eighth and ninth causes of action seek a judicial declaration (8) that Rotunda Partners is obligated to make a "Contingent Payment" under Section 5(b) of the promissory note only on the first "bona fide sale" transaction and (9) that, assuming that is so, the "Contingent Payment" obligation provides no minimum dollar amount on the triggering transactio...

Excerpt: ...7. Plaintiff alleges in this case that she sustained injuries to her lower back and left hip. Plaintiff had medical treatment and physical therapy for her injuries for over a year. Plaintiff retained the law firm of Galine, Frye, Fitting & Frangos to represent her in this action against Defendant Hossain. The case settled quickly for Defendant's insurer's $50,000 policy limit. The Notice of Conditional Settlement was filed even before Defendant H...

Excerpt: ...nt a preliminary injunction, the court considers two interrelated factors: the likelihood that the plaintiff will prevail on the merits of his claims, and the relative interim harm to the parties form the issuance or nonissuance of the injunction. (See, e.g., Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) The court cannot issue a preliminary injunction unless it is reasonably probable that the plaintiff will prevail on the merits o...

Excerpt: ...d because Plaintiff did not attach a meet-and-confer declaration that complies with the requirements set forth in the Civil Discovery Act. See CCP § 2016.040(a). The declaration must set forth facts that indicate that the parties made a reasonable and good faith attempt to resolve all of the disputed issues. In this case, the Court takes notice of Plaintiff Robertson's request that attorney Shirdel participate in a meet-and-confer discussion. At...

Excerpt: ...ion ("the inspection report"). The inspection report indicated that various parts of the car were "checked and ok at this time"; other parts "may require future attention"; and "operation of horn, interior lights exterior lamps, turn signals, hazard and brake lamps" was marked "requires immediate attention". (See FP's Separate Statement Facts ("SSF" Nos. 1-2 and 8 and the evidence cited in support.) The inspection report was based on a visual ins...

Excerpt: ...date, in the amount of $40,586. The arguments Defendant raises in this motion are essentially arguments that could have been raised at the outset of this case, in a demurrer. Defendant argues, inter alia, that (1) Plaintiff cannot maintain a claim for breach of contract as a third party beneficiary of the contract between Defendant and Alameda Health Systems, based on the express language of the contract itself; (2) Plaintiff has not alleged a vi...

Excerpt: ...), is DENIED. The issues raised by Defendant's motions are moot. Plaintiff's counsel has submitted a declaration stating that the requested discovery responses were served on Defendant's attorneys on March 12, 2021. Defendant's request that the Court impose a monetary sanction on Plaintiff in the sum of $4,403.50, pursuant to CCP § 2023.030(a), is GRANTED IN PART. Based on its review of the parties' papers, Defendant has demonstrated that an awa...

Excerpt: ...ntiff Zermemo filed this case in state court as proxy or agent of the LWDA under PAGA. In a PAGA case, the plaintiff can recover penalties on behalf of the LWDA. In a PAGA case the LWDA cannot recover wages. (ZB, NA v. Superior Court (2019) 8 Cal.5th 175.) Defendant seeks to stay the LWDA's case pending arbitration of plaintiff's individual claims. STAY UNDER CCP 1281.4 CCP 1281.4 states: "If a court of competent jurisdiction, whether in this Sta...

Excerpt: ...federal court on behalf of a putative class of employees of defendant. In a class action, the plaintiff seeks to recover wages and money due to the members of the class. Defendant seeks to stay the LWDA's case pending resolution of the class action. COURT'S INHERENT AUTHORITY TO STAY The Court may stay a case in its entirety in the interest of justice. (C.C.P. 187; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 7...

Excerpt: ...ny a petition to compel arbitration on the ground of waiver, waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof." Saint Agnes Medical Center v. PacifiCare of California (2003) 8 Cal.Rptr.3d 517, 31 Cal.4th 1187, 82 P.3d 727, citing Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 782. The present action was filed on July 20, 2020. Defendant filed its answer to the complaint on O...

Excerpt: ...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 if, and only if, t...

Excerpt: ...ganeh's cancellation of instrument cause of action in his First Amended Cross- Complaint in Case No. RG19-017769. This consolidated action involves, in significant part, a dispute over ownership of real property located at 2524 65th Avenue, Oakland, which Ochoa purchased in 2003. (See RYeganeh's Separate Statement of Facts ("SSF") No. 1 and the evidence cited in support.) On April 30, 2012, the subject property was sold at a trustee's sale. Altho...

Excerpt: ...aleed now demur to those cross-complaints. Because the cross-complaints and demurrers in these actions are nearly identical, the Court addresses them both at once. 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 noti...

Excerpt: ...of the Fourth Amended Complaint because it is necessary for the Court to review Plaintiff's allegations in making a ruling on Defendant's motion. The Court also reviewed the meet-and-confer transcript attached to the Declaration of attorney Brandon J. Mickle as Exhibit B. The Court here notes for the record that the transcript is 50-pages long. Plaintiff Wilson, a current employee of the Department of Transportation, has held positions as a maint...

Excerpt: ...'s Order of November 2, 2020, which granted summary adjudication to Plaintiffs, reveals a new reason for intervention. As part of that Order, the Court construed California Code of Regulations, Title 8, Section 230.1, as it was in effect before 2009. The Court concluded, based on the plain language of that provision, that a public contractor could only take advantage of that section's safe-harbor provision if it requested sufficient apprentices i...

Excerpt: ...ef. This tentative ruling will automatically become the Court's final order on Tuesday, March 23, 2021 unless, by no later than 4:00 p.m. on Monday, March 22, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hea...

Excerpt: ...rguably unlawful. As currently drafted, Settlement Agt, para VI.B(1) releases the "Released Claims" and then Settlement Agt para VI.B(2) extends that to include a Civil Code 1542 release. The scope of a release for the absent class members cannot include a Civil Code 1542 release or an equivalent release. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 640, 645 [trial court would not approve a Civil Code 1542 release in class ...

Excerpt: ...aintiff Sukumar definitely has "standing" to prosecute this action against Defendant Zand. The Court has merely stated repeatedly that it must take Plaintiff's allegations as true at the pleading stage even if there is doubt about their veracity. See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967. Defendant's suggestion that the Court review the entirety of an earlier filed small claims action to dismiss Plaintiff's case indicates th...

Excerpt: ...eeport Water Authority, the City of Sacramento, the City of Roseville, and the City of Rio Vista. Plaintiffs simultaneously move for summary judgment on many of the affirmative defenses jointly asserted by each of the Individual Defendants and Defendant Balfour Beatty Infrastructure, Inc. ("BBII"). These motions present many arguments and legal issues already discussed and resolved in the Court's Order of November 2, 2020, resolving an earlier se...

Excerpt: ...ufactured the talcum powder sold as the Longs Drugs store brand ("Longs Baby Powder") from 1999 through at least 2002. Plaintiff alleges that the use of Longs Baby Powder in her presence during or after 1999 exposed her to respirable asbestos and was a substantial factor in causing her mesothelioma. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT "A party may move for summary judgment in an action or proceeding if it is contended that the action...

Excerpt: ...ments that make the title void or voidable and that are not deducible from the record, such as a grantor's incapacity to contract, fraud in procuring a transfer, forgery, or lack of delivery. (12 Witkin, Summary of California Law, section 338 p.390 (11th Ed. 2017.) In order to claim the benefit of the recording laws, the claimant must be a bona fide purchaser or mortgagee, or a judgment creditor without notice, and the burden of proving bona fide...

Excerpt: ...dgment as a matter of law. (Code Civ. Proc. § 437c, subd. (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...

Excerpt: ...nt dispute lies within the scope of the agreement to arbitrate. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.) Plaintiff Henkes acknowledges that he entered into the 2/12/17 Employee Transfer Agreement. (Henkes Dec., par 2.) The agreement he entered into with Tesla has an arbitration clause. The arbitration clause covers "any and all disputes, claims, or causes of action, in law or equity, arising from or relating to [Henkes's] emp...

Excerpt: ...bson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625; CRC 317(d).) In a demand for production of documents, "the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) [a] statement of compliance with the demand is incomplete[;] (2) [a] representation of inability to comply is inadequate, incomplete, or evasive[;] [and/or] (3) [a]n objection in the response...

Excerpt: ...rte application for leave to file a late opposition to Defendants' motion for sanctions. The Court has reviewed and considered Plaintiff's opposition. See Rule of Court 3.1300(d). Although Plaintiff has not complied with the Court's orders requiring that she serve supplemental responses to Defendants' form interrogatories and requests for production of documents by the November 3, 2020 deadline or at any time thereafter, the Court concludes that ...

Excerpt: ...for the dental practice. Richard Evangelista filed a cross complaint alleging that Stephen Phillips breached the contract and that Leslie Phillips misappropriated trade secrets. Leslie Phillips filed a cross-complaint against Richard Evangelista arising from her employment with him from 2017-1919. REQUESTS FOR ADMISSION The Motion to compel Evangelista to provide further responses to RFAs 1-7 and 9- 11 is DENIED. The RFAs sought admissions contra...

Excerpt: ...shed preliminary injunction standard for pre- judgment relief. On a motion for preliminary injunction the court evaluates the two interrelated factors of (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm the plaintiff may suffer if the injunction is denied as compared to the harm that the defendant may suffer if the injunction is granted. (Right Site Coalition v. Los Angeles Unified School Dist. (2...

Excerpt: ...aleed now demur to those cross-complaints. Because the cross-complaints and demurrers in these actions are nearly identical, the Court addresses them both at once. 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 noti...