Excerpt: ...esired result. The attorney's billings were inadequate and did not conform to B&P 6148. Plaintiff asserts claims for (1) breach of written contract, (2) professional negligence; (3) breach of fiduciary duty; and (4) negligence. REQUEST FOR JUDICAL NOTICE The request of defendant for judicial notice is DENIED. When the items sought to be judicially noticed raise potential factual conflicts, it is inappropriate to take judicial notice on a demurrer...

Excerpt: ...int of the Roman Catholic Welfare Corp (Owner) filed 6/12/18 asserts claims against Contractor arising from the large scale remodeling of St Theresa School. (Cpt para 8-10.) The contract has an indemnity provision where Contractor agrees to indemnify Owner against claims arising from the performance of the work that are "attributable to bodily injury, sickness, disease, or death, or injury to or destruction of tangible property (other than the Wo...

Excerpt: ...nts motion for class certification (4 and ½ years after case filed); On 1/24/20, Judge Seligman order establishes 9/10/20 as five-year rule deadline; On 1/24/20, Judge Seligman sets trial for 8/24/20; On 5/27/20, Judge Seligman re-sets trial to 11/30/20. On 9/24/20, the parties file a stipulation setting the discovery cut off for lay witnesses for 1/8/21 and for expert witnesses for 1/25/21. The stipulation did not address written discovery or m...

Excerpt: ...raming argues that because LMV 19H Holdings posted a release bond there is now no lien on an owner's property, and the owner has no standing to file a Lambert Motion. The court finds that LMV 19H Holdings has standing to bring a Lambert motion. If a Mechanic's lien is recorded on property, then the property owner can bring a motion to remove an improper mechanics lien or to obtain an order confirming that the filing of a release bond has released...

Excerpt: ...pervisor. The two had personal, non-work related, relationship. (UMF 6; DX 2 [text messages of 10/20/17].) Between 4:28 and 7:08 am in the morning of 10/30/17 Knight sent Lara multiple text messages of an arguably oversharing and arguably sexual nature. (UMF 8.) Lara reported the incident to management. (UMF 10) The Regents offered Lara paid time off. (UMF 10) The Regents decided to not discipline Knight because there was no prior history, this w...

Excerpt: ...nts motion for class certification (4 and ½ years after case filed); On 1/24/20, Judge Seligman order establishes 9/10/20 as five-year rule deadline; On 1/24/20, Judge Seligman sets trial for 8/24/20; On 5/27/20, Judge Seligman re-sets trial to 11/30/20. On 9/24/20, the parties file a stipulation setting the discovery cut off for lay witnesses for 1/8/21 and for expert witnesses for 1/25/21. The stipulation did not address written discovery or m...

Excerpt: ...iff opposed the motion with a three part argument. First, as a matter of law, an employee plaintiff suing under the PAGA does so as the proxy or agent of the state's labor law enforcement agencies. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381; Z.B. N.A. v. Superior Court (2019) 8 Cal.5th 175, 185; Kim v. Reins International California (2020) 9 Cal.5th 73, 81.) Second, as a matter of fact, the state agencies are not a party...

Excerpt: ...categories of persons. At issue in this case is CCP 203(a)(11), which states: "(a) All persons are eligible and qualified to be prospective trial jurors, except the following: ... (11) Persons who are currently required to register as a sex offender pursuant to Section 290 of the Penal Code based on a felony conviction." Plaintiff asserts a single cause of action asserting that the legislative action eliminating the categorical exclusion for most...

Excerpt: ...o person in trustee capacity and in individual capacity]; Benasra v. Marciano (2001) 92 Cal. App. 4th 987 [person signed agreement as a corporate officer and not in his individual capacity]; Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1731 [representing partnership is not representing partners individually]; Rule Prof Conduct 1.13 [organization as client].) The issue is complicated because a trust is a set of responsibiliti...

Excerpt: ... 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.) APPEALS FROM LABOR CODE 98 PROCEEDINGS A party that is not satisfied with the result o...

Excerpt: ...["the power of a court to stay proceedings ... was inherent at common law and is now vested in the superior courts of this state"].) The relevant criteria for the Court to consider vary with the reason for the stay and the scope of the stay sought. (Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1534 (stay based on forum non conveniens); Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1463-1468 (stay based on forum no...

Excerpt: ...er) was pregnant with Camden Gutierrez (Child). On 6/15/19, defendants were negligent in the delivery. Mother suffered a partially ruptured placenta. (1AC 14.) Child suffered brain injuries. (1AC, para 7.) Mother observed both the injury to herself and to Child. (1AC 10, 21, 22.) The complaint alleges (1) Child's claim for medical negligence; (2) Mother's claim for medical negligence; (3) Mother's claim for bystander emotional distress from watch...

Excerpt: ... from those expressly pleaded and matters of which judicial notice has been taken." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) Amgen sponsored a clinical trial for "Romosozumab" an experimental biologic. Diablo Clinical Research and Mark Christiansen (collectively "Diablo") administered a clinical trial of the drug, including preparing an Informed Consent document. The Informed Consent included, among other things, a list of s...

Excerpt: ... supervised by the national organization. (Para 18.) The individual defendants are members of the Chapter. (Paras 19, 20, 21.) Plaintiff was a pledge at the Chapter. The Fraternity, acting through the Chapter, gave plaintiff a tour of the Chapter residence building, showing plaintiff how to get to the roof and a bench on the roof. The bench was surrounded by cans and bottles, indicating frequent use by members of the Chapter. On 4/17/18, the Chap...

Excerpt: .... (SSUF 63, 64.) The traffic signal pole is a Type 1B, which is a 4-inch pole that is designed as a breakaway pole. (Schlaefli Dec., para 10.) The traffic pole is consistent with CalTrans standard plans. (SSUF 60; (Schlaefli Dec., para 12.) The traffic signal pole is not separated from the pick-up lane by concrete bollards. The City installed concrete bollards elsewhere that separate the sidewalk from the pick-up lane. On 3/27/18, Plaintiffs were...

Excerpt: ...ment was unsuccessful. In June 2019, plaintiff reported the bed bugs to Defendants. On June 5, 2019, the City of Berkeley Inspected the unit, and Defendants excluded Plaintiffs. On 6/13/19, plaintiff's private mold contractor inspected the unit. On July 8, 2029, the City issued a notice of violation for mold. On an undisclosed date, Plaintiff vacated the unit. On August 18, 2019, plaintiff was admitted to the ER for insect bites. While Plaintiff ...

Excerpt: ...tock, nominate and elect directors to the board, and wage battles for corporate control. This case involves the application of the statutes and settled principles, complicated somewhat because the Company is a "Manager-Managed LLC" rather than a regular corporation. BACKGROUND On 1/1/17 Brendel and Sade founded Freeli Foods, LLC. The Company is a "Manager-Managed LLC" as defined under Corp Code 17702(b)(5). (Brendel Dec, Exh 5 [letter from Freeli...

Excerpt: ...don Dec., para 6.) It is specific to Gordon, as evidenced by its terms, the footer, and Gordon Dec para 7. It has an integration clause. When DPC terminated Gordon's employment it did so under para 7(a) of the Gordon agreement. (Godon Dec. Exh 3.) It has no arbitration clause. When Gordon showed up at work, he signed the DPC form employment agreement. The DPC form employment agreement is dated 9/1/17. It is a form agreement. (Gordon Dec., para 9....

Excerpt: ...aylor to crash and suffer personal injuries (PUF 60). The City of Alameda designed and maintained the bike path, which is a Class I bikeway. Alameda Municipal Power, which is a department of the City of Alameda, installed and maintained the utility cover, which is located in the bike path (DUF 11, 12; PUF 41). Alameda Municipal Power maintains electrical boxes and covers as part of its responsibility as an electrical utility/ (PUF 48, 49, 50, 51,...

Excerpt: ...12/4/01 Roy Jones induced his father to transfer the property to himself and his father as joint tenants (para 21), that on 12/5/01 the deed was recorded (exhibit), that on 2/8/02 the father died (exhibit - death certificate), and that as a result Roy interfered with the right of the four children to the property through intestate succession. The complaint assets claims for (1) undue influence, (2) declaratory relief, and (3) cancellation of reco...

Excerpt: ...ian Plummer (Father). Christian Plummer did not appeal this Court's judgment. On 7/18/16 the court granted summary judgment against Edward Plummer (Grandfather). Edward Plummer did appeal this Court's judgment, and the court of Appeal reversed. On 8/21/20, defendant Kaiser filed a motion for judgment on the pleadings asserting that under CCP 377.60 the Grandfather did not have standing to sue for wrongful death. The Order of 9/22/20 granted that ...

Excerpt: ...date of this offer pursuant to a fee motion or by agreement." On 6/12/20 plaintiff accepted the offer. Plaintiff seeks fees of $18,048.50, which represents the 36.5 hours worked through the filing of the motion at rates of $525/hour and $395/hour. The hours worked are limited to those "as of the date of" the CCP 998 offer. Plaintiff assets that the limitation is unconscionable. The limitation is not procedurally or substantively unconscionable. T...

Excerpt: ...motion for reconsideration must be "based upon new or different facts, circumstances, or law." (CCP 1008(a).) The motion is not based on new law. The motion is not supported by new facts. Regarding new facts, "the moving party must provide a satisfactory explanation for the failure to produce that evidence at an earlier time." (Shiffer v. CBS Corp (2015) 240 Cal.App.4th 246, 255.) A motion for reconsideration must be based on evidence "that the m...

Excerpt: ...he party's interest in the litigation. Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533-536, makes clear that if the court makes three findings, then the court must grant the motion. The first finding is whether the moving party is over 70 years of age. The requirement reflects a legislatively acknowledged risk of death or incapacity due to age. (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.) The second finding is whether the moving...

Excerpt: ...ley v. Fosca Oil Co., (1963) 216 Cal.App.2d 813, 817 ["the power of a court to stay proceedings ... was inherent at common law and is now vested in the superior courts of this state"].) The relevant criteria for the Court to consider vary with the reason for the stay and the scope of the stay sought. (Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1534 (stay based on forum non conveniens); Morris v. AGFA Corp. (2006) 14...

Excerpt: ... to sign a severance agreement that included a waiver of claims. (Cpt, para 12-13, Exh A.) This is a demurrer, so the court assumes the allegations of the complaint to be true. The court considers the settlement agreement that is attached to the complaint. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 ["We also consider the complaint's exhibits"].) The complaint asserts claims 1, 2, 4, 5, and 6 relating to the termination of...

Excerpt: ...the original complaint with leave to amend, identifying various ways that the complaint was not adequate. The First Amended Complaint filed 8/25/20 is an amendment or supplement to the Original Complaint rather than a comprehensive document. In addition, the First Amended Complaint as filed and scanned with the court on 8/25/20 has only two (2) pages. The document does not cover all causes of action, is not signed, and references exhibits but doe...

Excerpt: ...inst H&H, (3) NorCal was to pay Lutz $30,000 in installments, and (4) if NorCal defaulted, then Lutz could seek judgment against NorCal. The 1AC asserts causes of action against Hancock and Handeland ("H&H") for (2) declaratory relief, (4) fraudulent inducement to contract, (5) rescission of contact, and (6) unjust enrichment. The 1AC alleges at para 4(A) that Lutz Construction Services assigned its rights under the agreement to plaintiff Quigley...

Excerpt: ...davits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts. (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657- 658.) Once facts showing minimum contacts with the forum state are established, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) When there ar...

Excerpt: ...inst H&H, (3) NorCal was to pay Lutz $30,000 in installments, and (4) if NorCal defaulted, then Lutz could seek judgment against NorCal. The 1AC asserts causes of action against Hancock and Handeland ("H&H") for (2) declaratory relief, (4) fraudulent inducement to contract, (5) rescission of contact, and (6) unjust enrichment. The 1AC alleges at para 4(A) that Lutz Construction Services assigned its rights under the agreement to plaintiff Quigley...

Excerpt: ...negligence on behalf of various Defendants, he was injured. Cross-Complainant Perez asserts that there was a hidden ultra-hazardous condition at the property and that as a result of the incident he was also injured. Perez alleges that various cross-defendants failed to take appropriate precautions to protect Perez from dangerous conditions of the premises, including the risks of electrocution and explosion at the Main Distribution Panel. THE MOTI...

Excerpt: ... ("If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement".) The Settlement Agreement contained a confidentiality clause, prohibiting the Parties from disclosing many of the details of the Agreement, including the amount of the settlement. (Rolando Decl., Exh. 1, Art. 5.0.) In 2020, Plaintiff sought a restraining order against Defendant, wh...

Excerpt: ...ernative Holdings gave notice on June 5, 2019, of a trustee's sale. Plaintiffs sought to prevent the foreclosure and obtained a Temporary Restraining Order ("TRO"). Thereafter, Plaintiffs filed a complaint seeking to recover the attorney's fees incurred in seeking the TRO; an "overpayment" by Plaintiffs to satisfy the loan at issue; and punitive damages. The SAC contains four causes of action: (1) breach of contract; (2) violation of statute (Civ...

Excerpt: ... of taping her catheter. (Compl., p. 5:12-14.) Thereafter, Plaintiff alleges she told several hospital employees about the alleged assault, but none of them took any action, including but not limited to giving Plaintiff a rape exam. (Compl., p. 11:13-22.) These other hospital employees who are named as Defendants are: Rohini Erik Noronha, M.D. who is identified as the "hospitalist physician" (Compl.p.8:10-13); Defendant Ruby Lantican who is ident...

Excerpt: ...e 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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable ...

Excerpt: ... of taping her catheter. (Compl., p. 5:12-14.) Thereafter, Plaintiff alleges she told several hospital employees about the alleged assault, but none of them took any action, including but not limited to giving Plaintiff a rape exam. (Compl., p. 11:13-22.) These other hospital employees who are named as Defendants are: Rohini Erik Noronha, M.D. who is identified as the "hospitalist physician" (Compl.p.8:10-13); Defendant Ruby Lantican who is ident...

Excerpt: ... Defendant moves to strike the references to Government Code section 815.6 and to Article I, section 28 subd(c) (the California Safe Schools Act) in the FAC. First, Plaintiff concedes that the Safe Schools Act does not create a private right of action. Accordingly, the reference to Article I, section 28(c) is hereby STRICKEN from the FAC. Next, as to the reference to Government Code section 815.6 at page 4:24-25 in the FAC, the Court finds that t...

Excerpt: ...s to strike Plaintiff Keashalia Pierce's prayer for punitive damages. Plaintiff was a tenant residing in an apartment owned by Defendants. In her Complaint, Plaintiff asserts Defendants engaged in a "pattern of harassment and intimidation" towards Plaintiff after she complained about multiple habitability issues in her apartment. (Compl., para. 9.) On a motion to strike pursuant to C.C.P. sec. 436, the Court "may," but is not required to, "[s]tri...

Excerpt: ...on April 18, 2017. Both Petitioner and The Regents seek a Court declaration as to which is the prevailing party in this matter, and an award of attorney's fees. THE REGENTS ARE NOT ENTITLED TO ATTORNEY'S FEES BECAUSE THE PETITION WAS NOT FRIVOLOUS The PRA provides that the court shall award court costs and reasonable attorney fees to a petitioner should the petitioner prevail in litigation. (Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 35...

Excerpt: ...sory estoppel; and 4) Intentional Infliction of Emotional Distress. Plaintiff failed to comply with the Government Claims Act by alleging facts demonstrating or excusing compliance with the Act. (Govt. Code sec. 946.6.) Plaintiff does not allege she timely filed a government claim or an application for leave to file a later claim; or that she successfully petitioned for relief from the claim-filing requirements under the Government Code. "[F]ilin...

Excerpt: ...crow. The FACC alleges the following causes of action against Moving Defendants: 1) Implied and Equitable Indemnity; 2) Partial Implied and Equitable Indemnity; 3) Comparative Fault; and 4) Declaratory Relief. LEGAL STANDARD "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 st...

Excerpt: ...declaratory relief, the case proceeded to a jury trial on Plaintiff's claim of bad faith resulting in a jury verdict for Plaintiff and an award of damages for breach of contract and bad faith. The Court of Appeal reversed and remanded. (Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal.App.5th 948.) The matter is currently set for trial on October 4, 2021. LEGAL STANDARD Pursuant to Civil Procedure section 436, a "court may, upon a motio...

Excerpt: ...l facts exists as to that defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists...." (Bay Area Rapid Transit Dist. v. Superior Court (1996) 46 Cal.App.4th 476, 480-481.) This matter arises from Defendant's refusal to indemnify Plaintiff for the loss of his vehicle (the "Vehicle"), which was insured b...

Excerpt: ...im alleged in Plaintiffs' Complaint is that for PAGA violations. Defendant seeks to bifurcate this action into two phases. Defendant urges the Court to first adjudicate the issue of Plaintiffs' "individual" misclassification claims. Only if the Court determines Defendant misclassified Plaintiffs, would this matter enter a second phase in which the Parties engage in discovery related to other "aggrieved employees," and adjudicate liability and dam...

Excerpt: ...s Complaint alleges causes of action for: 1) vicarious liability for negligence under Government Code sec. 815.2; 2) dangerous condition of public property under Government Code section 835; 3) negligent hiring; 4) negligent supervision; 5) negligent retention; and 6) gross negligence. LEGAL STANDARD A defendant moving for summary judgment meets its burden of proof of showing that a cause of action has no merit if that party shows that ... there ...

Excerpt: ...aratory Relief regarding the meaning of "occurrence"; 4) Fourth Cause of Action for Declaratory Relief regarding payment of policy benefits; and 5) Fifth Cause of Action for Declaratory Relief regarding erosion and/or exhaustion of policy limits. BACKGROUND Plaintiff manufactured mechanical pipe joining products (e.g., couplings and valves). Defendants American Home Assurance Company, The Insurance Company of the State of Pennsylvania, National U...

Excerpt: ...he Motion demonstrates that Defendant served Plaintiff with a Subpoena on April 21, 2020, scheduling his oral deposition on May 1, 2020. (Droege Decl., ¶¶ 9-10 and Exh. F.) "Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service: (1) Personal attendance and testimony, if the subpoena so specifies. (2) Any specified production, inspection, te...

Excerpt: ...knowledge of a long history of violence at the San Leandro BART station; 2) the parking lot was inadequately lit; 3) the landscaping in the parking lot was improperly maintained; and 4) the security staff at the parking lot was inadequate. (FAC, p. 4.) LEGAL STANDARD "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 t...

Excerpt: ...efendant FFE Transportation Services ("FFE"). Two discovery motions are presently before the Court, both involving Plaintiff's request to inspect one of the tires from the tractor involved in the accident. On May 28, 2020, Plaintiff filed a motion to compel further response and production of tangible item, seeking an order requiring Defendant to produce for inspection one of the tires on the tow truck that allegedly caused the accident. On July 2...

Excerpt: ...) Following the accident, Plaintiff released his vehicle to Defendant with the expectation that the vehicle would be repaired. (FAC, para. 4.) At some point, it appears Defendant attempted to return the vehicle to Plaintiff. (FAC, para. 8 (alleging Farmers "threaten[ed] to drop off plaintiff's vehicle at his place of residence.") LEGAL STANDARD "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader...

Excerpt: ...s she purchased audio equipment from Sonos "starting in 2015." (Complaint, para. 8.) Plaintiff alleges the equipment had a variety of defects and that "[o]ver the last four years Plaintiff has needed to call tech support likely in excess of 50 times." TIMELINESS OF DEMURRER The Complaint in this matter was served on Defendant on February 21, 2020. The deadline for Defendant to file a responsive pleading fell after the Court was closed as a result...

Excerpt: ...he 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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the com...

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: ... 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: ... contains the following causes of action against the Owner Defendants: 1) retaliation in violation of Hayward Rent Ordinance (the "Ordinance" or "HRO") section 12 and Civil Code section 1942.5; 2) disability discrimination in violation of Government Code sections 12900-12996 (California Fair Employment and Housing Act ("FEHA"); 3) violation of Civil Code section 1940.2; 4) violation of Civil Code section 1941.1; 5) breach of contract; 6) breach o...

Excerpt: ...Upon Sale ("TDUS"), attached to the Complaint as Exhibit 5 and incorporated by reference. Accepting the allegations in the Complaint as true, Plaintiff became the legal owner of the Property on 8/9/19. Defendant Russell Robinson demurrers to each cause of action in the Complaint on the grounds that Plaintiff is not the "real party in interest in this matter" by virtue of a Corporate Assignment Deed of Trust ("CADOT") recorded on August 21, 2019 g...

Excerpt: ...of Records for Big Joe Handling Systems, on February 13, 2020; and (3) Deposition Subpoena for Production of Business Records served on the Custodian of Records for Old Republic Home Protection, on February 13, 2020. (See Decl. of Deborah Gutierrez, Exh. A.) Each of these subpoenas seek documents and records pertaining to Plaintiff's employment at her current employer and two of her former employers, including: job applications, performance evalu...

Excerpt: ...interference with Plaintiff's business interests. Defendants answered the Complaint on February 15, 2019 and thereafter the Parties engaged in discovery. Plaintiff sought a Protective Order, which was granted over Defendants' opposition. This Motion to Compel Arbitration was filed on behalf all Defendants on February 27, 2020. In their moving papers, Defendants varyingly characterize this Motion as one to compel arbitration and one to compel disc...

Excerpt: ...osition to the Motion. After consideration of Plaintiff's opposition papers, and all of the evidence before the Court, IT IS ORDERED: The Motion for Summary Judgment filed by Defendants Metromile Insurance Services, LLC and National General Assurance Company ("Defendants") is GRANTED. LEGAL STANDARD A defendant moving for summary judgment meets its burden of proof of showing that a cause of action has no merit if that party shows that ... there i...

Excerpt: ...termination ... 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 to show them to be unnecessary or unreasonable." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855 [citations omitted].) To be awarded, such costs must be "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparatio...

Excerpt: ...o "state by affidavit ... what new or different facts, circumstances, or law are claimed to be shown." (C.C.P. § 1008(a).) The burden under section 1008 "is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it earlier." (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 21...

Excerpt: ...Plaintiff incurred in seeking the TRO; an "overpayment" by Plaintiffs to satisfy the loan at issue; and punitive damages. The FAC does not contain any enumerated causes of action and the caption reads only "First Amended Complaint for Damages." Based on the substantive allegations, the Complaint appears to be for breach of the covenant of good faith and fair dealing, and Defendants have construed it as such. LEGAL STANDARD "A demurrer tests the l...

Excerpt: ...own has a law suit pending in the Eastern District of California that arises out of the same subject matter as this action. (See RJN Exhs. P, Q, R, S and T.) CONTRACT BASED CLAIMS Defendant' Demurrer to the First and Third Cause of Action is SUSTAINED with leave to amend. The gravamen of these two claims is that Wells Fargo had a contractual obligations to provide Plaintiff with notice before accelerating the remaining balance on the home loan an...

Excerpt: ...PRA case was based on Govt Code 6254.5, which is part of the CPRA, instead of on Evid Code 912, which is part of the more generally applicable Evidence Code. It should not have been a surprise that the court relied on a section in the CPRA when considering a claim for waiver under the CPRA. Plaintiff had the opportunity to address the analysis at the hearing. The trial court's conclusion is not a new fact. (Corns v. Miller (1986) 181 Cal.App.3d 1...

Excerpt: ...arties have not contested the March 16, 2020 tentative ruling. It is unclear to the Court whether the Parties' discovery dispute is ongoing or has been resolved. As such, the PARTIES ARE TO APPEAR at the hearing on this Motion prepared to provide the Court with an update on the status of this discovery dispute. The Court made the following observations in the March 16, 2020 tentative ruling: This is an employment dispute, involving claims for sex...

Excerpt: ...e of Civil Procedure section 438(c)(1)(B)(ii) "performs the same function as a general demurrer[] and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed." (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064; see Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767-1768.) A general demurre...

Excerpt: ...ssell and any and all bank account records of T. Russel from September 28, 2014 to the present. Plaintiff State Compensation Insurance Fund filed a notice of non-opposition to the Motions. LEGAL STANDARD Personal financial records implicate privacy interests recognized in the California constitution. (See, e.g., Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550; Allen v. Superior Court (1984) 151 Cal. App. 3d 447, 453.) Where such privacy righ...

Excerpt: ...ong-Beverly Act and include a cause of action for fraud. LEGAL STANDARD "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reason...

Excerpt: ...rs who have a dispute relating to the resolution of sunlight or views lost due to tree growth must follow certain mandatory procedures to resolve the dispute. (BMC §12.45.030.) The resolution procedures begin with an initial, informal reconciliation process, requiring the party who believes a tree on the property of another diminishes the beneficial use of their property (the "complaining party") to notify the other party in writing of the compl...

Excerpt: ... in her deposition she suffers from PTSD. Plaintiff moves to quash three subpoenas requesting medical records from her medical care providers: Kaiser Permanente; Irina Khait; and Maidena McLerran, PhD. The subpoenas seek any and all medical records, without limitation as to date and without limitation as to any specific medical condition. Medical records are protected from disclosure by the right of privacy. (California Constitution, Art. 1, sec....

Excerpt: ...)(ii) "performs the same function as a general demurrer[] and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed." (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064; see Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767- 1768.) TIMELINESS As an initial matter, the Court finds ADSI's ...

Excerpt: ... "necessarily involve" less than $25,000. Defendants request the case be reassigned as a limited civil matter, or in the alternative, be diverted to mandatory arbitration. Defendant asserts it has good cause for filing the Motion after the statutory deadline because Defendant only learned of the facts necessitating reclassification during the settlement conference held on 1/27/20. Plaintiff has opposed the Motion and requests the Court maintain t...

Excerpt: ...e Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767- 1768.) The SAC contains a single cause of action as to Moving Defendants Eichner and Project Sentinel for violations of the Hayward Rent Ordinance (the "Ordinance") sections 2(g) and 2(o), and violation of California Rule of Court 3.855(e). The provisions of the Ordinance at issue provide that a medi...

Excerpt: ...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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpre...

Excerpt: ...e and scope. The Court finds these objections to be valid. Though the scope of discovery is broad, ICT has not sufficiently demonstrated how this Interrogatory seeks information that may lead to the discovery of admissible evidence. The reasons for compelling a further response, set forth in the separate statement, do not include facts showing the potential relevance of each and every one of Plaintiff's customers over a fifteen year period of tim...

Excerpt: ...tablished probable cause to believe that said vehicle is located at the private place identified in the application at 33791 Remington Drive, Union City, CA 94507. (3) Plaintiff has established that Defendant has no equity interest in the vehicle. IT IS HEREBY ORDERED that the unopposed application by Plaintiff for a writ of possession is GRANTED to permit Plaintiff to demand possession of the Subject Property. Plaintiff has established with suff...

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: ...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: ... 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: ... 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: ...ument is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. . . . [J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed."].) LEGAL STANDARD ON DEMURRER The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admit...

Excerpt: ...s far back as 2003. Plaintiff argues the subpoenas are overbroad, and violate Plaintiff's right to privacy as well as her rights under Insurance Code section 791 et seq. In Opposition, Defendant makes a conclusory argument that the records sought are "relevant and likely to lead to the discovery of admissible evidence." The hearing on this Motion previously was continued in order to allow the Parties to further meet and confer and to afford Defen...

Excerpt: ...Williams v. Superior Court (2017) 3 Cal. 5th 531, 557; Britt v. Superior Court (1978) 20 Cal.3d 844, 864.) The right of privacy is not absolute and may be outweighed by the interest in discovering the truth in legal proceedings, but any intrusion on privacy rights requires a balancing of the countervailing rights, and will only be allowed if there is a compelling state interest and disclosure is necessary to achieve the compelling state interest....

Excerpt: ...e and scope. The Court finds these objections to be valid. Though the scope of discovery is broad, ICT has not sufficiently demonstrated how this Interrogatory seeks information that may lead to the discovery of admissible evidence. The reasons for compelling a further response, set forth in the separate statement, do not include facts showing the potential relevance of each and every one of Plaintiff's customers over a fifteen year period of tim...

Excerpt: ...cts 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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpretation, reading it as a whole and its parts in ...

Excerpt: ...mages. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Instead, there must be "sufficient facts alleged to support the allegation" that the defendant was guilty of "malice" within the meaning of the statute. (Id., at pp. 6-7; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 ["the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of 'oppr...

Excerpt: ...aintiffs' claims. The current allegations do not include facts comprising the elements of a cause of action on any of the thirteen legal theories named in the Complaint, and demurrer to each cause of action is warranted. (C.C.P. § 430.010(e).) In addition, as Defendant points out, the Complaint as a whole is uncertain, in that it fails to comply with CRC 2.112 by specifically stating, for each cause of action, "the party asserting" the cause of ...

Excerpt: ...l services provided to Azure Sky Dufaux and Devon Dufaux in state court litigation matters. HLF asserts that AGLLC guaranteed that debt. HLF concedes that it has recovered two vehicles owned by AGLCC, valued at $38,269. In this action, HLF seeks to recover the remainder owed from AGLCC and/or Defendant Argentum Properties, LLC ("Argentum"). HLF contends that the bankruptcy trustee has asserted that all claims held by AGLLC have become property of...

Excerpt: ... rather than the 30 days required by section 598, but the motion to bifurcate was filed on December 20, 2019, and Plaintiff opposed RCB's ex parte application to hear the motion on shortened time. The court finds that Plaintiff is not prejudiced by the delay in seeking bifurcation, and that any prejudiced is outweighed by the potential for increased efficiency and reduction of potential prejudice to RCB resulting from bifurcation. RCB has made a ...

Excerpt: ...e and scope. The Court finds these objections to be valid. Though the scope of discovery is broad, ICT has not sufficiently demonstrated how this Interrogatory seeks information that may lead to the discovery of admissible evidence. The reasons for compelling a further response, set forth in the separate statement, do not include facts showing the potential relevance of each and every one of Plaintiff's customers over a fifteen year period of tim...

Excerpt: ... costs pursuant to para. 38 of the Disposition and Development Agreement ("DDA"), which provides that in the event any legal action is commenced to interpret or to enforce the terms of the DDA and/or the other loan documents, the party prevailing in such action shall be entitled to recover against the party not prevailing all reasonable Attorneys' Fees and Costs incurred in the action. In this action, RPII sought a declaratory judgment: (1) requi...

Excerpt: ...s filed on September 19, 2019, and shows mail service on September 16, 2019. Plaintiff filed her First Amended Complaint on October 25, 2019. Defendant contends that the failure to file the First Amended Complaint within the time permitted by the court subjects the First Amended Complaint to a motion to strike pursuant to Code of Civil Procedure section 581(f)(4). (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 [dismi...

Excerpt: ...Plaintiff alleges that it is the successor in interest to "The Glovatorium, Inc." Plaintiff alleges that Maryland Casualty Co. was the insurer of The Glovatorium, Inc., and Zurich is the successor by merger to Maryland Casualty Co. Plaintiff alleges that starting in the 1960s, Robert Depper operated a dry-cleaning business known as The Glovatorium, on Broadway Street in Oakland. In 1999, Depper and his son, Stuart Depper, filed a lawsuit, Robert ...

Excerpt: ... period from 1998-2012. 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 AIG renewed Plaintiff's policy in 2009/2010 even though it did not have enough money to pay claims, and thereafter devised a plan using coverage litigation, misstatement and delay to avoid making payments. In its pr...

Excerpt: ...is no defense to a cause of action by proving each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff has met that burden, the burden shifts to the defendant or to show that a triable issue of one or more material facts exists as to that cause of action. (Code of Civil Procedure section 437c(p)(1). If plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Aguila...

Excerpt: ...is no defense to a cause of action by proving each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff has met that burden, the burden shifts to the defendant or to show that a triable issue of one or more material facts exists as to that cause of action. (Code of Civil Procedure section 437c(p)(1). If plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Aguila...

Excerpt: ...r. When personal service proved impossible, Plaintiff mailed the summons and complaint with a notice and acknowledgment of receipt to Defendant's residential address. 18 days later, Plaintiff filed an ex parte application for service by publication. The order for publication was signed on 7/31/19. Plaintiff paid a publication fee of $650 to the Contra Costa Times on 9/8/19. Defendant answered the Complaint on 8/12/19. When a plaintiff attempts to...

Excerpt: ... The Court has previously issued two preliminary injunctions related to Plaintiffs' protest activities. On December 21, 2018, this Court entered an Order Granting Preliminary Injunction preventing Plaintiffs from staging protests in certain Whole Foods' stores in the Bay Area where protests had previously occurred. After the preliminary injunction was granted, however, Plaintiffs continued to protest inside Whole Foods Market stores in other loca...

Excerpt: ...s ("BSI"), Ventures Trust 2013- I-H-R (the "Trust") and Fay Servicing, LLC ("Fay") have all been loan servicers of the mortgage loan (the "Loan") for a property purchased by Plaintiffs Steven Davis and Drake Alhambra, LLC ("Drake") in 1998. Bank of America ("BofA"), also a defendant in this action, was the original servicer. The loan was thereafter transferred to the Trust, BSI and Fay in that order. During the time BofA was servicing the Loan, a...

Excerpt: ...al injury as a result of Defendant's negligence. On 2/26/18, Plaintiff filed a proof of service of the summons and complaint. It is unclear from this POS on whom, where, when or how service was effected. The POS indicates both that Defendant was herself served at 727 Rosal Avenue in Oakland; and that a "disbarred atty. who files the Defendant Mrs. Smith's papers" was served, with no indication of where or how service occurred. On 9/11/18, Plainti...