Excerpt: ...cted to drop the fraud cause of action in his First Amended Complaint. The First Amended Complaint includes two causes of action: (1) conversion; and (2) violation of Penal Code § 496 (receiving or buying stolen property). Defendants have filed a demurrer to the First Amended Complaint and urged the Court to deny Plaintiff leave to amend. Based on its review of the First Amended Complaint and the parties' written submissions, the Court sustains ...

Excerpt: ...erve his Memorandum of Costs seeking reimbursement of $58,964.95. Defendant filed her Motion to Strike and/or Tax Costs on July 16, 2020. Defendant's motion is granted because the Court does not agree with Plaintiff's contention that he is the "prevailing party." See CCP § 1032(a)(4). The Court is quite familiar with the facts and the procedural history of this case originally filed on March 11, 2015. This is a case where the Court does not simp...

Excerpt: ... Judgment of Global Medical Response, Inc. is premature because the company has never made an appearance in this case despite being served with the summons in November 2018. Plaintiffs, however, have never sought to take the default of Global Medical Response, Inc. Counsel for Plaintiffs and Defendants were advised of the failure of Global Medical Response, Inc. to make an appearance in its order of January 9, 2020. The Motion for Summary Judgmen...

Excerpt: ... Cross-Defendant allegedly performed all or nearly all of the work before Cross-Complainants terminated him in December 2017 for failure to comply with the terms of the contract. Cross-Defendant submitted invoices to Cross-Complainants that total $276,808.87. Cross-Complainants paid Plaintiff $173,355.75. Plaintiff Meurer filed his Complaint on May 10, 2018. Defendants filed their Cross-Complaint against Meurer on July 27, 2018. The Court set the...

Excerpt: ...aintiff to file a Third Amended Complaint. The request was granted. The trial date at the time was October 7, 2019. In August 2019, Defendants filed a Motion to Continue Trial. The motion was based on Defendants' intent to file a Motion for Summary Judgment prior to trial. The motion was granted, and the trial date was continued to October 26, 2020. Plaintiff then filed his Fourth Amended Complaint on November 4, 2019, after the Court granted Def...

Excerpt: ...ction with prior discovery motions on six occasions. Defendants have advised the Court that Plaintiff has not yet paid any portion of the $6,190.00 that she has been ordered to pay. The Court notes that counsel for Plaintiff attached a personal check in the sum of $5,200.00 made payable to Gordon Rees, et al. with the courtesy copy of her opposition to the motion. The Court does not understand why Ms. Parker did not transmit the check to Defendan...

Excerpt: ...ant. The Court merely notes in the text of this ruling that Martensen owns property adjacent to property owned by Cross- Complainant Yu in the Oakland hills. Cross-Complainant Singh is Yu's business partner and the construction project manager at 80 Roble Road. The Yu property is located downhill from the Martensen property. Martensen commenced his action on December 3, 2019 to indicate his rights under a view easement granted by the former owner...

Excerpt: ...ons under numerous Labor Code provisions in its relationship with non-exempt employees. Plaintiff defines the term "aggrieved employees" as current or former hourly-paid or non-exempt employees who worked for Mattson during the period from November 12, 2018 to February 3, 2020. Plaintiff attached a copy of her November 12, 2019 notice of intent to file PAGA claim delivered to the Labor & Workplace Development Agency ("LWDA") to the Complaint. Def...

Excerpt: ...ction with prior discovery motions on six occasions. Defendants have advised the Court that Plaintiff has not yet paid any portion of the $6,190.00 that she has been ordered to pay. The Court notes that counsel for Plaintiff attached a personal check in the sum of $5,200.00 made payable to Gordon Rees, et al. with the courtesy copy of her opposition to the motion. The Court does not understand why Ms. Parker did not transmit the check to Defendan...

Excerpt: ...h its obligations under numerous Labor Code provisions in its relationship with non-exempt employees. Plaintiff defines the term "aggrieved employees" as current or former hourly-paid or non-exempt employees who worked for Mattson during the period from November 12, 2018 to February 3, 2020. Plaintiff attached a copy of her November 12, 2019 notice of intent to file PAGA claim delivered to the Labor & Workplace Development Agency ("LWDA") to the ...

Excerpt: ... December 2014. Plaintiffs allege that neither NNA nor its agents at the dealership disclosed to them that the Continuous Variable Transmission ("CVT") in the vehicle had substantial defects known only to NNA and the dealers. Plaintiffs contend that they would have found such information to be material. They most likely would not have purchased the vehicle if the required disclosure had been made at the time of purchase. Defendant challenges only...

Excerpt: ...S provided medical care to Patient, that AHS billed BCBS for the medical services, and that BCBS has failed to pay for the services. (Cpt para 7-12.) The Complaint alleges that the reasonable value of the medically necessary services, including emergency services, totaled at least $75,312.74, which reflects the usual and customary full bill charges. (Cpt 13.) The Complaint alleges that BCBS paid a portion of the bill but refused to pay $69,425.53...

Excerpt: ...th the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (CCP �...

Excerpt: ...d that Williams could recover costs of suit. On 2/24/20, Williams filed a memo of costs. LEGAL STANDARD The Court's first determination is that of entitlement - whether to allow the cost. That is a question of law if a cost is expressly allowed or prohibited. (CCP 1033.5(a) and (b).) Awarding a cost is otherwise a matter of discretion. (CCP 1033.5)( c)(4).) "An item not specifically allowable ... nor prohibited ... may nevertheless be recoverable...

Excerpt: ...ttlement fund or approx. $29,375. Employees 25% of net settlement fund or approx. $9792. LAW ON PAGA SETTLEMENTS Plaintiff asserts the PAGA claim on behalf of the State of California's Labor Workforce Development Agency. "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.) (See also ZB, N.A. v. Superior...

Excerpt: ... a Second Amended Complaint to address the deficiencies. The Second Amended Complaint was filed on September 23, 2019. The Second Amended Complaint includes a single cause of action for general negligence. Plaintiff alleges that he is quadriplegic. On March 10, 2018, while receiving treatment at Olive View - UCLA Medical Center, Registered Nurse Aneesh and Nursing Assistant Rennadele alleged caused Plaintiff injury and pain when they were reposit...

Excerpt: ...oss-Defendant breached two separate oral agreements. The First Cause of Action is based on Cross-Defendant's alleged breach of the 2017 agreement described as the "Purchase Agreement" in the Third Amended Cross-Complaint. The terms of the Purchase Agreement are set forth in paragraph 9 of the Third Amended Cross-Complaint. In paragraph 10, Cross- Complainant alleges that he incurred certain material expenses through the removal of tenants and the...

Excerpt: ...Defendant received a total of $11,961.00 that she was not entitled to have. The Court is authorized to enter summary judgment in favor of Plaintiff if it determines that no triable issues of material fact exist and that a reasonable jury would be required to find in its favor based on the factual record. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851. Plaintiff's motion is denied because it has not met its burden of producti...

Excerpt: ...oss-Defendant breached two separate oral agreements. The First Cause of Action is based on Cross-Defendant's alleged breach of the 2017 agreement described as the "Purchase Agreement" in the Third Amended Cross-Complaint. The terms of the Purchase Agreement are set forth in paragraph 9 of the Third Amended Cross-Complaint. In paragraph 10, Cross- Complainant alleges that he incurred certain material expenses through the removal of tenants and the...

Excerpt: ... works in San Diego County, she decided to file her PAGA action in Alameda County. Plaintiff alleges in her Complaint that Defendants have violated various Labor Code provisions because they have erroneously designated Plaintiff and other underwriters in California as exempt and not hourly employees. Defendants' motion to stay was originally noticed for hearing in Department 21, but it was reset in Department 517 when Judge Winifred Y. Smith deni...

Excerpt: ...1 seeks documents related to Wings of Eagle Fund I, LLC. Defendant's unverified supplemental response does not comply with the clear requirements set forth in CCP § 2031.210 et seq. Defendant must serve a further supplemental response no later than June 19, 2020. Plaintiff's contention that Defendant waived his right to assert all objections to this request is not accepted. Defendant timely asserted an objection in his original response served i...

Excerpt: ...lied. Defendants' motion is denied because it is moot. The Court has determined that Plaintiffs' second Motion for Summary Adjudication was improperly filed without prior court approval. See CCP § 437c(f)(2) (party may not file a second motion for summary adjudication based on the same issues presented in a prior motion without court approval); and Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108. Plaintiffs did not attempt to make a showing tha...

Excerpt: ...of transfer was April 12, 2019. The Court has not yet set a trial date. The next Case Management Conference is on July 20, 2020. Cross-Defendant asserts in the Demurrer that the First Amended Cross-Complaint is barred as to him by the statute of limitations. Cross-Defendant contends that the First Cause of Action for Defamation is subject to a one-year statute of limitations pursuant to CCP § 340(c). Cross-Defendant contends that the Second Caus...

Excerpt: ...lied. Defendants' motion is denied because it is moot. The Court has determined that Plaintiffs' second Motion for Summary Adjudication was improperly filed without prior court approval. See CCP § 437c(f)(2) (party may not file a second motion for summary adjudication based on the same issues presented in a prior motion without court approval); and Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108. Plaintiffs did not attempt to make a showing tha...

Excerpt: ...of transfer was April 12, 2019. The Court has not yet set a trial date. The next Case Management Conference is on July 20, 2020. Cross-Defendant asserts in the Demurrer that the First Amended Cross-Complaint is barred as to him by the statute of limitations. Cross-Defendant contends that the First Cause of Action for Defamation is subject to a one-year statute of limitations pursuant to CCP § 340(c). Cross-Defendant contends that the Second Caus...

Excerpt: ...ionist named Stephanie at Amazon.com, Inc.'s offices in Seattle on January 2, 2020. The Proof of Service did not include a declaration that copies of the Summons and Complaint were mailed to Defendant Rubenstein. The declaration of mailing was filed on March 4, 2020. The Court first takes notice of Plaintiff's argument that Defendant's motion is not timely. Although the argument has some merit, the Court believes that Defendant reasonably withhel...

Excerpt: ...wear muzzles when they are outside. Plaintiffs claim that they have had to endure years of loud barking and howling at all hours of the day. The hearing is continued because the civil departments are currently closed. If Defendants oppose the motion, they must file and serve a written opposition no later than June 17, 2020. If they do not, they will not be permitted to present argument at the hearing. See Sexton v. Superior Court (1997) 58 Cal.Ap...

Excerpt: ...iate under CCP § 437c(f)(1) ("A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty."). See Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425, 436 ("The ruling on summary adjudication is thus essentially an interpretation of contract provisions and has certain advisory qualities, as it does not dispose of an entire cause...

Excerpt: ...pay Plaintiff the sum of $200,924.81. Defendant then proceeded to file her Memorandum of Costs on January 14, 2020. Defendant seeks an award of $44,886.87. The majority of the fees ($25,724.50) are for the cost of having a court reporter at trial. Plaintiff timely filed his motion to strike on January 24, 2020. Plaintiff's motion is granted because the Court does not agree with Defendant's contention that she is the "prevailing party." See CCP §...

Excerpt: ... Performance as a remedy for its Breach of Contract Causes of Action, and to supplement the allegations to include facts learned since the First Amended Complaint was filed on March 27, 2018. The Second Amended Complaint was then filed and served on January 23, 2020. Defendant's Motion to Strike is simply a condensed version of his separately filed Demurrer to the Second Amended Complaint. The Court is required to accept Plaintiff's well-pled all...

Excerpt: ...rt denied Defendants' first Motion to Set Aside Entry of Default without prejudice because counsel for Defendants failed to sign his papers, including his declaration, as required by CCP §§ 128.7 and 446. Defendants then refiled their motion on February 5, 2020. In advance of the hearing on March 10, 2020, the Court published its Tentative Ruling continuing the matter to March 26, 2020, because counsel attached only his Demurrer and Motion to S...

Excerpt: ...remedy for its Breach of Contract Causes of Action, and to supplement the allegations to include facts learned since the First Amended Complaint was filed on March 27, 2018. The Second Amended Complaint was then filed and served on January 23, 2020. The Court is required to accept Plaintiff's well-pled allegations as true when ruling on Defendant's Demurrer to the Second Amended Complaint even if they appear to be implausible. See Aubry v. Tri-Ci...

Excerpt: ...remedy for its Breach of Contract Causes of Action, and to supplement the allegations to include facts learned since the First Amended Complaint was filed on March 27, 2018. The Second Amended Complaint was then filed and served on January 23, 2020. The Court is required to accept Plaintiff's well-pled allegations as true when ruling on Defendant's Demurrer to the Second Amended Complaint even if they appear to be implausible. See Aubry v. Tri-Ci...

Excerpt: ... works in San Diego County, she decided to file her PAGA action in Alameda County. Plaintiff alleges in her Complaint that Defendants have violated various Labor Code provisions because they have erroneously designated Plaintiff and other underwriters in California as exempt and not hourly employees. Defendants' motion to stay was originally noticed for hearing in Department 21, but it was reset in Department 517 when Judge Winifred Y. Smith deni...

Excerpt: ...ade at least 30 days before initial trial date). The initial trial date in this case was October 28, 2019. On January 21, 2020, the Court ordered the parties to comply with their obligation to meet and confer regarding the issues raised by Cross-Defendant in its motion. See CCP § 439(a). The Court is dismayed that the attorneys did nothing more than argue the merits of their respective positions. There was a substantial amount of discussion abou...

Excerpt: ... for all purposes. The separate action is currently being prosecuted by Ms. Fisher's successor in interest. Plaintiff Morken alleges that the sales representatives of Vivint Solar, Inc. and Vivint Solar Developer, LLC prey upon individuals who do not know their legal rights. In this case, after Plaintiff's elderly mother expressed interest in having solar panels installed on her roof, Tyler Williams, Defendants' Regional Vice President of Sales W...

Excerpt: .... See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967. The Court, however, is not required to accept Plaintiff's contentions, deductions or conclusions of law and fact. Id. This case involves Plaintiff's allegation that representatives of Defendants defrauded her elderly mother, Florence Fisher, who is now deceased, by forging her signature on a contract to purchase solar power and for the installation of solar panels on her home in C...

Excerpt: ...d procedural history of this case. The Court takes notice of its order of January 31, 2020 denying Defendants' first Motion to Set Aside Default without prejudice. Plaintiff Robertson and counsel for Defendants presented their argument to the Court on that date. Plaintiff's objection to the motion based on defense counsel's failure to serve the re-filed papers by January 31, 2020 is overruled. Plaintiff did not sustain any undue prejudice because...

Excerpt: ...t 517 in July 2019. At the conclusion of the trial, the jury rendered a verdict in favor of Defendant BMW of North America, LLC. The Court entered Judgment in favor of Defendant on December 13, 2019. Plaintiff's first contention in support of the motion is that Defendant should not be permitted to recover its costs because the CCP § 998 offer that its attorneys served just prior to the commencement of trial was legally deficient. The Court decli...

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

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

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

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

Excerpt: ...674, 685 (court is tasked with determining the parties' mutual intent); and Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 (trial court may weigh conflicting evidence to determine whether arbitration agreement exists). If the Court finds that Defendants presented insufficient evidence to support their assertion that Plaintiff agreed to submit this claim to arbitration, then the inquiry concludes and the motion to compel arbit...

Excerpt: ... claims that Defendants breached the terms of their distributorship agreements when they sought to exercise their right to terminate the agreements. On April 30, 2019, the Court set the matter for trial on March 23, 2020. On December 6, 2019, Defendants filed their Motion for Summary Judgment. Plaintiff and Defendants entered into two Distribution Agreements. The first Distribution Agreement is dated January 1, 2005. The second Distribution Agree...

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

Excerpt: ... Defendant did not file an Answer to the Complaint until June 3, 2019. On September 24, 2019, the Court denied Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues. The motion is denied because Plaintiff has not properly put the sufficiency of Defendant's responses before the Court. Defendant correctly notes that Plaintiff did not timely file a Motion to Compel after it responded to Plaintiff's discovery ...

Excerpt: ...en the action was first filed in 2012. The Court was then forced to vacate the December 9, 2019 trial date after it granted the motion in part with leave to amend. Defendants now claim that it would be unfair to require them to start trial without an opportunity to depose Plaintiff regarding the new facts. The Court disagrees. First, the Court rejects Defendants' contention that Plaintiff is required to include all evidentiary facts in his pleadi...

Excerpt: ... that Shaun Ferderer, an "Alameda County Firefighter," was injured on May 7, 2018, when the ambulance he was in entered an intersection in Hayward against a red light and collided with a vehicle driven by Defendant Luis Carlos Salazar, Jr. and rolled over. Lauren Ferderer has filed a loss of consortium claim. Plaintiffs claim that their injury was proximately caused by the negligence of Salazar and the driver of the ambulance, Kendyl Marie Post. ...

Excerpt: ... Cal.4th 962, 966-967. The Court is permitted to consider only the facts pled in the Complaint and facts subject to judicial notice. See CCP § 430.30(a). Defendant should instead file a Motion to Compel Arbitration. The Court would then be permitted to consider the parties' evidentiary submissions and determine whether Plaintiff's objections to the process of appointing an arbitrator have merit. However, Defendant's Demurrer to the Fourth Cause ...