Excerpt: ...P § 1033.5, because their request is made under the Song-Beverly Act. See Civil Code § 1794(d). However, the Court does not agree that Plaintiffs are entitled to recover from Defendant certain expenses such as expert fees without making a showing that such costs are ordinarily charged to them. See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137; and Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4...

Excerpt: ...tion and its reasonableness. Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104. The Court continued the hearing on Plaintiffs' motion to allow counsel to submit additional evidence to support their motion. The Court noted that declarations from the lead attorneys from the three firms, Steve Mikhov, Cynthia E. Tobisman, and Bryan C. Altman, could not authenticate the time entries made by the numerous other attorneys and paralegals...

Excerpt: ... counsel will adequately meet and confer when required by statute and will attest to their compliance for any further motions in this case. The Complaint contains causes of action for slander, extortion and intentional infliction of emotional distress ("IIED"). Every complaint must "set forth the essential facts of the plaintiff's case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source, a...

Excerpt: ... Reverse Mortgage and MTC (collectively, "Defendants") alleging various causes of action arising from Defendants' handling of his spouse's reverse mortgage for property located in Hayward, California (the "Property") after the death of his spouse, asserting that Defendants improperly recorded a Notice of Default and improperly undertook a non-judicial foreclosure. Plaintiff asserts claims of breach of contract, breach of the implied covenant of g...

Excerpt: ... the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "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 proceeding[.]" (Hirsa v. Superior Court (1981) 1...

Excerpt: ...etla are involved in a separate lawsuit in the Superior Court of California, County of Alameda, Green Foods, LLC v. Nichenametla, Case No. HG19013336 (the "Concurrent Lawsuit"). The Demurring Defendants have received an attachment order against Defendant Nichenametla as part of the Concurrent Lawsuit. In the present action, Plaintiff seeks damages against all Defendants related to Defendant Nichenametla's alleged failure to be officially removed ...

Excerpt: ...ivil cases, the dates assigned for a trial are firm." (Cal. Rules of Court, Rule 3.1332(a).) "All parties and their counsel must regard the date set for trial as certain." (Id.) "Although continuances of trials are disfavored . . . [t]he court may grant a continuance only on an affirmative showing of good cause requiring the continuance." (Cal. Rules of Court, Rule 3.1332(c).) Circumstances that may indicate good cause include the unavailability ...

Excerpt: ... counsel will adequately meet and confer when required by statute and will attest to their compliance for any further motions in this case. The Complaint contains causes of action for slander, extortion and intentional infliction of emotional distress ("IIED"). Every complaint must "set forth the essential facts of the plaintiff's case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source, a...

Excerpt: ...) "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.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (Del E. Webb Corp. v. Structural Mate...

Excerpt: ... the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "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 proceeding[.]" (Hirsa v. Superior Court (1981) 1...

Excerpt: ...t the moving party will ultimately prevail on the merits; and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. The court's determination is guided by a mix of the potential merit and interim harm factors. (Butt v. State of California (1992) 4 Cal.4th 668, 677-78.) A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the p...

Excerpt: ...ly yelled profanities and threats to her face before releasing the door. Plaintiff later reported the alleged assault to the BART station attendant, but no action was taken by the attendant or the BART police against DOE 1. STANDARD OF LAW "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).) "A party may move...

Excerpt: ...laintiff'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, the evidence would allow a reasonable trier of fact to find the underlying f...

Excerpt: ... was set to go to trial on December 16, 2019, but the Court agreed to vacate the date because AllPro Real Estate Management, Inc. made a late request for leave to file a permissive Cross-Complaint. The Court reviews the parties' evidence to determine whether a valid agreement to arbitrate exists by applying general California contract law. Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 685 (court is tasked with determining the parties...

Excerpt: ...nt's Motion for Terminating Sanctions is DENIED. Defendant's Motion for Monetary Sanctions of $3,060.00 is GRANTED. IT IS FURTHER ORDERED THAT sanctions in the amount of $3,060.00, in addition to the $1,500.00 in sanctions previously ordered by the Court, is payable by Plaintiff to Defendant. This action arises from a traffic accident between Plaintiff and Defendant on February 5, 2019 in Oakland, in which Plaintiff alleges that he has dash camer...

Excerpt: ...re pending, which stayed discovery, and the stay imposed by the two Informal Discovery Conferences, that Defendant's motion is timely. (See: C.C.P. 425.16 subd. (g), 1013 subd. (a), Local Rule 3.31(4), 2016.080 subd. (b).) DISCOVERY NOT BARRED UNDER C.C.P. 916(a). "[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcem...

Excerpt: ... Nos. 1-41 on an item by item basis. Currently, both sides are taking an "all or nothing" position as to the disputed demands instead of attempting to reach a compromise. Without determining any issues raised in the motion papers, the Court provides the following observations which may help guide the Parties in their meet and confer efforts: The Court finds that Plaintiff is entitled to documents related to the promissory note which is the subjec...

Excerpt: ...ED IN PART and DENIED IN PART. SBCA's MSJ/MSA with respect to Plaintiffs' respective First Amended Complaints is DENIED. The Court finds that triable issues of material fact exist with respect to SBCA's's alleged negligence towards Plaintiffs. SBCA's MSJ with respect to WCA's Cross-Complaint is DENIED. Because the Court finds triable issues of material fact with respect to Plaintiffs' negligence claims against SBCA, SBCA's MSJ against WCA also fa...

Excerpt: ...efendant") Organic Cacao Powder ("OCP") below which the parties have agreed Prop 65 Warnings are not necessary is sufficient to protect California consumers from consuming amounts of cadmium above the MADL amount of 4.1 micrograms per day. (See 27 Cal. Code Regs. § 25805(b).) Plaintiffs have presented evidence tending to show that the average consumer of Defendant's OCP would consume approximately 2.1 tablespoons, or 15.5 grams, of the product p...

Excerpt: ...ritten "Settlement Agreement" filed with the court on February 2, 2017, which conditionally dismissed the case pursuant to the settlement, pursuant to C.C.P. 664.6. (See the Declaration of Keri L. Salet ("Salet Decl."), at ¶ 2, "Settlement Agreement" attached at Exh. A.) The court may enter a judgment pursuant to the terms of that agreement under C.C.P. § 664.6. Additionally, the Declaration of Keri L. Salet attached to the motion provides suff...

Excerpt: ...efendant on each of (i) Arciero & Sons, Inc.; (ii) Arden Group, Inc.; (iii) Odom Corporation; (iv) Clearwater Pipeline, Inc.; (v) Pipeline Materials, Inc. c/o Wells Pipeline Materials, Inc.; (vi) Regal Construction Company; (vii) Doty Borthers [sic] Equipment, Inc.; (viii) Pipeline Engineers, Inc.; and (ix) Stoddard Company Bell Gardens, Inc., the Motion to Quash is GRANTED IN PART and DENIED IN PART. Defendant's business records subpoenas to the...

Excerpt: ... of the case. On November 5, 2019, the Court granted Defendants' Motion for Judgment on the Pleadings as to the First through Fourth Causes of Action and ordered Plaintiff to supplement his allegations supporting those claims. Based on its review of the evidence submitted by the parties, the Court concludes that Defendants have met the modest burden of proof needed for the requested relief. See CCP § 1030(b) (defendant must show that there is a ...

Excerpt: ...or other parties to evaluate the merits of that claim." (See CCP § 2031.240(c)(1).) At a minimum, Plaintiff must specify whether the redacted portions of his medical records concern treatment for or evaluation of mental conditions or symptoms versus physical conditions or symptoms. Therefore, the Court ORDERS Plaintiff to serve an amended Privilege Log no later than Wednesday, March 4, 2020 that contains "sufficient factual information" to enabl...

Excerpt: ...ate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. § 1281.2.) AGREEMENT TO ARBITRATE Defendant disputes that there was an agreement to arbitrate. Defendant maintains that Plaintiff did not consent to arbitration when the retention agreement was signed and that therefore, there is no agreement to a...

Excerpt: ...rights under the Note and Deed of Trust at issue in this case and pursuant to Civil Code section 1717. Plaintiffs brought this action on December 4, 2018 against U.S. Bank and other defendants, asserting claims for breach of contract, breach of implied covenant of good faith and fair dealing, negligence, unfair business practice, and accounting based upon the handling of a loan for their property located in Fremont, California. As against U.S. Ba...