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: ...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: ...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: ...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...