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...