Excerpt: ...any, California, while setting up a product display for her employer, Mondelez International Inc. Plaintiff did not file her Complaint until April 8, 2021. Plaintiff contends in the Complaint that the two-year statute of limitations did not begin to run on August 30, 2018, because she was not aware of Defendant's negligence until months later. In California, the statute of limitations commences when a plaintiff has sufficient information to suspe...

Excerpt: ...uct; and (3) if the contract was written, attach the contract as an exhibit to the First Amended Cross-Complaint or allege, verbatim, the term(s) of the contract that BWR breached. Although paragraph 6 of the Cross-Complaint refers to a "lease", it does not appear that Kapila is alleging that BWR actually leased the subject property from Kapila. In addition, Kapila fails to expressly allege that they entered a contract with BWR requiring that any...

Excerpt: ...fferent arbitration provision, but they do not present any evidence of that. Nor do Plaintiffs describe what was "different" about the purported arbitration provision in the "Lease Agreement" or identify any contradictions between the two arbitration provisions. In any event, it is unclear why Plaintiffs' alleged agreement to arbitrate their claims against Tesla in two separate agreements would be a defense to enforcement of either or both of the...

Excerpt: ... of her proposed claim of punitive damages against Defendant Goldman. Plaintiff argues that she has a legal basis for the claim based on Defendant Goldman's testimony that he was aware of problems with the brakes of his vehicle prior to the accident. Plaintiff argues that the California Supreme Court held decades ago that a party injured in a motor vehicle accident can assert a claim for punitive damages based on the defendant's willful disregard...

Excerpt: ... of her proposed claim of punitive damages against Defendant Goldman. Plaintiff argues that she has a legal basis for the claim based on Defendant Goldman's testimony that he was aware of problems with the brakes of his vehicle prior to the accident. Plaintiff argues that the California Supreme Court held decades ago that a party injured in a motor vehicle accident can assert a claim for punitive damages based on the defendant's willful disregard...

Excerpt: ... and SSA Terminals (Oakland) LLC) were served on March 19. As a preliminary matter, the Court has no record that "SSA Terminals LLC" has ever been named as a Defendant in this case or ever appeared in this case. In addition, there is no evidence before the Court that Galin Luk, counsel for the various SSA entities, ever agreed that the subpoenas served on the SSA entities would be treated as if they were ordinary requests for documents under Code...

Excerpt: ... Defendants were obligated to commence work to remove the gatepost and the portion of their gate on Plaintiffs' side of the boundary line "upon execution of this Stipulation." Walter Nix, Defendants' contractor, states in his declaration that he and Defendants did not enter into a contract for the work until the end of February 2021. The gatepost and concrete footing have still not been removed. However, Defendants' failure to comply is partially...

Excerpt: ...l care he received from Dr. Donald Lai and ValleyCare Medical Center between November 3-10, 2019. The case was assigned to Dept. 20, Hon. Paul Herbert presiding. On 1/22/21, Judge Herbert sustained the Demurrer filed by defendant ValleyCare without leave to amend as to all causes of action except false imprisonment and negligent infliction of emotional distress. On February 10, 2021, plaintiff voluntarily dismissed the two remaining causes of act...

Excerpt: ... Plaintiff has instead added a new First Cause of Action entitled, "Violation of Due Process and Unlawful Enforcement." Defendants County of Alameda and Alameda County Sheriff's Office have filed a demurrer to the First Cause of Action because Plaintiff did not allege facts sufficient to show that she exhausted her available administrative and judicial remedies prior to filing the Complaint on February 19, 2020. See Campbell v. Regents of the Uni...

Excerpt: ... . . between you and us or our employees, agents, successor or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) . . . " FCA, alleged to be the manufacturer or distributor of Plaintiff's vehicle (see Complaint, paragraph 9), is not a signatory to the ...

Excerpt: ...tructive termination due to intolerable working conditions.) (See Defendant's Separate Statement Facts ("SSF") Nos. 7-22 and 59-63; Plaintiff's response; Plaintiff's Additional Facts ("AF") Nos. 36-48; and the evidence cited in support.) Defendant does not attempt to proffer a legitimate, nondiscriminatory reason for its alleged treatment of Plaintiff, other than to argue that all three of the corrective actions it issued to Plaintiff were justif...

Excerpt: ...at consultation, Defendant prepared three documents that Nellie executed. First, Nellie resigned as Trustee of The Nellie Wong Bertucci 2013 Revocable Trust ("the Trust") and had Plaintiff appointed as Successor Trustee; in addition, the Trust was changed from a revocable trust to an irrevocable trust. Second, Nellie transferred the Trust's interest in real property located at 315 Montcalm Street, San Francisco to Plaintiff. Third, Nellie revoked...

Excerpt: ...liminary injunction. The Court granted Plaintiff's Ex Parte Application and issued a Temporary Restraining Order against Defendants Youland, Inc., Lin Jia (aka Richard Jia) and Peer Street, Inc. on June 28, 2021. The Court granted the application in order to protect Plaintiff from having the property sold at a trustee's sale on July 1, 2021. The Court cannot grant the requested injunction because Plaintiff subsequently dismissed Peer Street, Inc....

Excerpt: ...ation - Abuse of Administrative Process". In addition, Karnstein moves to strike six other portions of the Cross-Complaint, as indicated in Items Nos. 1-6 in Karnstein's Notice of Motion. In ruling on a Special Motion to Strike, the Court engages in a two-step process. (See Equilon Enterprises v. Consumer Cause Inc. (2002) 29 Cal.4th 53, 67.) First, the Court decides whether the moving party has made a threshold showing that the challenged cause ...

Excerpt: ...ed, code-compliant responses to Requests for Admissions, Set One, Nos. 2, 3, and 6. By that same day, Defendants shall serve verified further responses, without objections, to Form Interrogatories General, Set Two, No. 17.1.; Special Interrogatories, Set One, Nos. 13-19 and 22-27; and Requests for Production of Documents, Set Two, Nos. 59-65, 70, 72-74, 78-81, 85, and 88. By that same date, Defendants shall produce the documents responsive to tho...

Excerpt: ...gnature on the arbitration agreement pursuant to Civil Code § 1633.9. (See Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062.) Significantly, Plaintiff has submitted no evidence denying that he electronically signed the employment offer letter containing the arbitration agreement and that he agreed to those terms. Once a defendant has alleged the existence of an arbitration agreement, the burden shifts to t...

Excerpt: ...cie case of discrimination. The burden then shifts to defendant to demonstrate a legitimate, nondiscriminatory reason for its employment decision. If the defendant does so, the plaintiff must show, by a preponderance of the evidence, that the legitimate reasons offered by the defendant are a pretext for discrimination. (See, e.g., Arteaga v. Brink's Inc. (2008) 163 Cal.App.4th 327, 342- 343.) The plaintiff cannot meet that burden simply by showin...

Excerpt: ... of $448,000.00 from Bank of America on January 17, 2007. On September 19, 2012, Bank of America assigned its interest in the Deed of Trust to E*Trade Bank. On December 8, 2014, E*Trade Bank assigned its interest in the Deed of Trust to Bayview Loan Servicing, LLC. Bayview Loan Servicing, LLC later changed its corporate name to Community Loan Servicing, LLC. Plaintiff alleges that he defaulted on his mortgage payments prior to September 30, 2016....

Excerpt: ...ndant's motion to July 30, 2021 to give defense counsel time to seek relief from Judge Davila in the Northern District of California for plaintiff's apparent violation of his orders in the Brown and Waters cases by prosecuting this action. The court anticipated that counsel (both plaintiffs' and defendant's) would provide this court with updates on their efforts to seek relief from Judge Davila; but none have been presented. The Court has reviewe...

Excerpt: ... 29 Cal.4th 262, 273.) Therefore, the ruling on this motion depends entirely on Plaintiff's showing that one or more of the Defendants is subject to jurisdiction in California. Jurisdiction may be either general, or specific and limited. (See, e.g. Vons Companies Inc. v. Seabest Foods Inc. (1996) 14 Cal.4th 434, 445.) A nonresident defendant is subject to general jurisdiction if its contacts with the forum state are "substantial . . . continuous ...

Excerpt: ... to determine whether Lambert was a managing agent of Defendant during COVID, that is also irrelevant to Plaintiff's claims because she was fired eight months prior to the spread of COVID in the U.S. As to Question No. 2, the motion is GRANTED. Lambert is the Service Line Leader of the Emergency Room at Kaiser Antioch. The size and dollar amount of the emergency department's annual budget is relevant to whether Lambert can be considered a managin...

Excerpt: ...rated his vehicle, causing it to collide with Plaintiff near the intersection of Industrial Parkway SW and Addison Way, at approximately 8:15 a.m., on September 13, 2019. Plaintiff alleges that he was riding his 2002 Suzuki motorcycle when the accident occurred. Plaintiff alleges that he sustained serious bodily injuries and sustained financial loss as a result of the accident. The allegations and claims in the Complaint determine the scope of re...

Excerpt: ...Complaint when the case was still pending in the Tuolumne County Superior Court because Plaintiff states in the first paragraph that counsel for Dr. Gwalani and Dr. Abeles gave her some guidance about the appropriate manner of pleading causes of action. Based on its review of the First Amended Complaint and Defendant's memorandum of points and authorities, the Court agrees with Defendant's assertion that Plaintiff has not alleged sufficient facts...

Excerpt: ...th EBMUD. (See First Amended Complaint, paragraph 62.) The alleged actions by EBMUD that give rise to the Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing are not the same actions that give rise to the First Cause of Action for Breach of Contract. (Compare First Amended Complaint paragraphs 57 and 62.) In addition, a claim for breach of the implied covenant of good faith and fair dealing need not be based o...

Excerpt: ...ile an administrative charge with the DFEH alleging any harassment by Leung, as required by Government Code § 12960. (See Medix Ambulance Service Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 115-118.) Although Plaintiff's DFEH charge did mention Leung by name, it neither alleged that Leung was her employer, nor that Leung had harassed her, nor that Leung was the perpetrator of the harm suffered by Plaintiff. Therefore, Plaintiff's DFEH char...

Excerpt: ...two of the four causes of action in WM's First Amended Complaint. The Court rejects EMBUD's argument that the discovery at issue is either burdensome or oppressive. A party seeking relief from discovery based on burden must submit evidence showing the quantum of work required to respond to the discovery, and a party seeking relief based on oppression must show an intent to create an unreasonable burden or that the effect of the burden is incommen...

Excerpt: ...ing that is the subject of this lawsuit, video surveillance of the events leading up to and including the shooting, and police interviews with eyewitnesses including Defendants' employees.) It is fairly clear why those documents and recordings - if they all actually exist - would contain facts necessary for Plaintiff to oppose this motion. The Court's discretion in whether to grant a continuance should usually be exercised in favor of granting th...

Excerpt: ...ges that on October 18, 2016, she was followed to her home in Fremont by a former employee of Defendant, Barry Heisner, and attacked and robbed as she attempted to enter her home. Plaintiff had been playing cards at Bay 101 for several hours before leaving the casino at around 1:00 a.m. Defendant Heisner, who had been terminated as a card dealer in March 2016 for unrelated job performance reasons, was prohibited from entering the premises after D...

Excerpt: ...n Defendants' memorandum of points and authorities and the declarations of Gina Teafatiller, James Bittick, and Lawrence Joseph. The Court has no record that Defendants filed a declaration by James Bittick in support of this motion on August 24, 2020 or thereafter, and Defendants have never provided provide Department 520 with a courtesy copy of Bittick's declaration (or indeed any of their other moving papers filed August 24, 2020, as required b...

Excerpt: ...two of the four causes of action in WM's First Amended Complaint. The Court rejects EMBUD's argument that the discovery at issue is either burdensome or oppressive. A party seeking relief from discovery based on burden must submit evidence showing the quantum of work required to respond to the discovery, and a party seeking relief based on oppression must show an intent to create an unreasonable burden or that the effect of the burden is incommen...

Excerpt: ...he attorneys advise the Court that they were attempting to settle the case informally prior to November 17, 2020. After the Court ordered the parties to submit their claim to arbitration, the attorneys then spent months attempting to select an arbitrator. Plaintiff's attorney finally contacted JAMS on March 16, 2021 and commence the arbitration. On April 19, 2021, the parties advised JAMS that they had agreed to have the matter heard by retired f...

Excerpt: ...DENIED. The motion for summary judgment cannot be granted because Plaintiffs have not met their initial burden of making a prima facie showing that each element of the cause of action has been proved. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Although Plaintiffs have provided the Court with a large volume of evidence in the form of Defendant's responses to written discovery and pleadings and orders in the earlier filed Pro...

Excerpt: ...in their declarations, points and authorities in opposition being stricken. In addition, the motion of Plaintiffs Sharif Sawires and Nina Birnbaum for entry of judgment pursuant to the terms of the parties' Stipulation to Settle, executed on January 12, 2021 and approved by the Court on February 17, 2021, pursuant to CCP § 664.6, is CONTINUED to September 10, 2021, at 2:00 p.m., in Department 520. The Court has reviewed the parties' voluminous s...

Excerpt: ...ults were entered on April 7, 2021, and default judgment was entered on November 22, 2017. Plaintiff's former counsel Bonnie Anderson has filed a declaration under penalty of perjury asserting that on October 5, 2017, she was contacted by attorney Leonard Becker, purporting to represent Abeles, to discuss this case. In a subsequent discussion on November 9, 2017, Becker indicated that he would consult with Abeles about Plaintiff's proposal to set...

Excerpt: ...DENIED. The motion for summary judgment cannot be granted because Plaintiffs have not met their initial burden of making a prima facie showing that each element of the cause of action has been proved. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Although Plaintiffs have provided the Court with a large volume of evidence in the form of Defendant's responses to written discovery and pleadings and orders in the earlier filed Pro...

Excerpt: ...inst Plaintiff's property because he did not pay his assessments. Defendant says that Plaintiff became delinquent in 2014, and the trustee's sale was held on April 24, 2018. Plaintiff claims in the Complaint that he owed less than $1,000 in delinquent assessments as of April 2018. Plaintiff also claims that Defendant and the foreclosure trustee failed to comply with their statutory obligations in scheduling and conducting the trustee's sale. Base...

Excerpt: ...meda. The subject property had belonged to Veronica Cerkueira ("VC") and LC, in "joint tenancy with right of survivorship". On December 17, 2014, VC filed for divorce from LC. Upon the filing of the divorce petition, certain automatic temporary restraining orders ("ATROs") took effect pursuant to Family Code § 2040(a)(4) and (b)(3), which (1) restrain a spouse from transferring an interest in property by deed without the written consent of the o...

Excerpt: ...on for parties to file motions for summary judgment and for summary adjudication without conducting much if any discovery. The Court acknowledges the cost of litigation for Defendants accused of failing to comply with the myriad requirements imposed by the Labor Code and industrial wage orders. Defendants certainly would not be in a more favorable position if the Court were to grant their dispositive motion without the requisite supporting factua...

Excerpt: ...to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did n...

Excerpt: ...o provide the Court with courtesy copies of the relevant pleadings if it is reasonably likely that the Court will need to review them to decide a motion. The Clerk's Office does not provide the individual departments with any portion of the court file for law and motion matters. The allegations in the Complaint indicates that Plaintiffs S.R. and J.O. are developmentally disabled high school students who attended Mt. Eden High School during the 20...

Excerpt: ...Plaintiff asserts in this case fall within the scope of disputes that Plaintiff agreed to arbitrate in the MVOA and the RISC. The Court rejects Plaintiff's argument that Defendant lacks standing to enforce the parties' arbitration agreement because it assigned its interest in the RISC to US Bank. Plaintiff's claims against Defendant arises out of its purchase of Defendant's vehicle, and therefore Plaintiff has expressly agreed to arbitrate those ...

Excerpt: ...e presented and instead believed that it would be best for the Court to make the call. The entire reason the Legislature imposed a meet-and-confer requirement for demurrers and other pleadings motions was that too many litigants were asking the court to make the call. The Legislature determined that California trial courts were spending too much time and effort resolving endless rounds of pleadings challenges. Plaintiff must relent if he is not a...

Excerpt: ...herance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether Plaintiff has demonstrated a probability of prevailing on the claim. Plaintiff demonstrates this by showing the Complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted ...

Excerpt: ... personally served with the Summons and Complaint on June 23, 2020. Defendants' defaults were entered on 10/13/20. Pursuant to the request of Plaintiff, the court entered Default Judgment against the defendants on March 1, 2021. Defendants filed the instant Motion to Set Aside Default and Default Judgment on April 27, 2021. According to the Defendant's motion, this case is one of a trio of cases filed by Plaintiff Elvecio Machado against his brot...

Excerpt: ... sold by T-USA. Ryan Mark has sued UC, alleging a dangerous condition of public property, and he has also sued T-USA for various product liability claims. In its First Amended Cross-Complaint, T-USA alleges causes of action against UC for indemnity (both equitable and contractual) and declaratory relief. T-USA has also alleged a Sixth Cause of Action against UC for dangerous condition of public property. However, T-USA has not alleged that it was...

Excerpt: ...of which Plaintiff was also the co- founder) because Plaintiff had sexually assaulted an employee. McSilva allegedly reposted Arkin's defamatory posts with additional commentary, specifically "Salesforce this sexual predator now works for company as Global Head of Product for Music and Entertainment. What are you going to do about it?" As a result of that posting, Plaintiff alleges he was fired from his employment at Salesforce. As to Plaintiff's...

Excerpt: ...e for discovery the plaintiff must introduce sufficient evidence to establish a prima facie case of falsity or unprivileged statements. (See Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1351.) Plaintiff seeks discovery as to all posts made by Defendant Tyler McSilva on Instagram. The only evidence Plaintiff has submitted that McSilva made any statements on Instagram about or referring to Plaintiff is the declaration of Plaintiff's broth...

Excerpt: ... is DROPPED. The motion of Defendants to strike the false and contradictory portions of Plaintiff's First Amended Complaint, pursuant to CCP §§ 435 and 436, is DROPPED. The demurrer and motion to strike are dropped because attorney Simona A. Farrise Best did not comply with her statutory obligation to make a reasonable and good faith attempt to resolve the disputed issues informally prior to filing the demurrer and motion to strike. See CCP §�...

Excerpt: ..., Inc. is liable to him for his serious injuries and loss of earnings because Defendant Pulla was within the course and scope of his employment by The Gap, Inc. when the accident occurred. Plaintiff filed his Complaint on May 31, 2019. Attorney Steven J. Brady entered the case when his attorneys filed an Association of Attorney on December 7, 2020. In February 2021, the Court granted the parties' stipulation and continued the March 26, 2021 trial...

Excerpt: ...metering lights just beyond the Bay Bridge Toll Plaza. The parties advise the Court that Defendant served several subpoenas but later agreed to withdraw them in response to Plaintiff's informal objection. The Court acknowledges that although Plaintiff has waived her right of privacy to her medical records by filing this action seeking damages for her injuries, the scope of the waiver is limited by the injuries claimed and other factors not curren...

Excerpt: ...s given leave to amend to clarify whether or not the subject property was sold. If the subject property was not sold, Plaintiff should identify the language in the listing agreement (if any) that addresses whether Plaintiff is to be paid under those circumstances, and if so, how the payment is to be calculated. The portion of paragraph 3A(1) of the listing agreement quoted in Complaint paragraph 10 does not address that issue. Second, Plaintiff h...

Excerpt: .... Plaintiffs allege that Defendant has violated and continues to violate provisions of the California Code of Regulations requiring that employees should be given a suitable seat if the nature of their work reasonably permits the use of seats. Defendants have advised the Court that this is not the first private attorney general act case filed in California by Walmart employees asserting that their right to use a seat while working has been violat...

Excerpt: ...t 520. The Court has reviewed the parties' papers. Plaintiffs are current and former employees of Walmart Inc. who allege that Walmart has violated and continues to violate provisions of the California Code of Regulations requiring that employees should be given a suitable seat if the nature of their work reasonably permits the use of seats. The Court agrees with Defendant's assertion that Plaintiffs' claims in this action filed pursuant to Labor...

Excerpt: .... Plaintiffs allege that Defendant has violated and continues to violate provisions of the California Code of Regulations requiring that employees should be given a suitable seat if the nature of their work reasonably permits the use of seats. Defendants have advised the Court that this is not the first private attorney general act case filed in California by Walmart employees asserting that their right to use a seat while working has been violat...

Excerpt: ...t 520. The Court has reviewed the parties' papers. Plaintiffs are current and former employees of Walmart Inc. who allege that Walmart has violated and continues to violate provisions of the California Code of Regulations requiring that employees should be given a suitable seat if the nature of their work reasonably permits the use of seats. The Court agrees with Defendant's assertion that Plaintiffs' claims in this action filed pursuant to Labor...

Excerpt: ...was made aware prior to filing the Ex Parte Application that Dept. 520 does not hear ex partes on Fridays. The Ex Parte hearing was set for the following week. Neither the court nor opposing counsel had received the Ex Parte Application at the time of the hearing on the Motion for Summary Judgment The Court proceeded with the hearing on the Motion for Summary Judgment on April 30, 2021. Counsel for Plaintiff, Eliza Stewart, and Counsel for defend...

Excerpt: ...e for discovery the plaintiff must introduce sufficient evidence to establish a prima facie case of falsity or unprivileged statements. (See Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1351.) Plaintiff seeks discovery as to all posts made by Defendant Tyler McSilva on Instagram. The only evidence Plaintiff has submitted that McSilva made any statements on Instagram about or referring to Plaintiff is the declaration of Plaintiff's broth...

Excerpt: ...s given leave to amend to clarify whether or not the subject property was sold. If the subject property was not sold, Plaintiff should identify the language in the listing agreement (if any) that addresses whether Plaintiff is to be paid under those circumstances, and if so, how the payment is to be calculated. The portion of paragraph 3A(1) of the listing agreement quoted in Complaint paragraph 10 does not address that issue. Second, Plaintiff h...

Excerpt: ...ter counsel met and conferred on March 19, 2021 regarding the responses served on March 15, 2021, Plaintiff produced additional documents that counsel believed were responsive to request no. 1, but it did not amend the original deficient response. Plaintiff's response is inherently ambiguous because it asserts several objections, which have some merit, but then states that it will produce all documents responsive to the request. The Court does no...

Excerpt: ...r production of documents. The Court has reviewed the requests for production attached as Exhibit A to the Declaration of Audrey Smith. The Court has been advised that the scope of requests nos. 1 and 2 were limited after a discussion between the attorneys. Although Ms. McKewon, through her attorney Jonathan C. Teller, objected to the scheduling of the deposition on March 26, 2021, she did not object to the requests for production. Ms. McKewon ap...

Excerpt: ...asserts only the First Cause of Action for Harassment against Defendant Scott Page. The allegations and claims in the Complaint determine the scope of relevant issues before the Court. See Johnson v. Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636; and Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493. Plaintiff, who is African American, was hired by National University on February 11, 2015. National University System ("NUS") i...

Excerpt: ...endant's employee or employees. The Court notes that Roadrunner Transportation did not file an opposition, nor did Plaintiff Rodney Deed object to the production of his employment records. The Court, however, cannot order an out-of-state entity to comply with a California subpoena duces tecum. Defendant has not shown that the Illinois entity is subject to the Court's jurisdiction. The motion is granted as to the August 4, 2020 subpoena duces tecu...

Excerpt: ...l their attorney filed a meet-and-confer declaration on February 11, 2021. Defendants then filed their demurrer to the Complaint on March 8, 2021. Plaintiff has not filed proofs of service of the summons on the numerous other Defendants identified in her Complaint. Plaintiff's Complaint includes the following four Causes of Action: (1) Violation of Civil Rights (42 U.S.C. § 1983); (2) Violation of Civil Rights (42 U.S.C. § 3601 and the Fourteen...

Excerpt: ...Since Plaintiff's initial deposition, he has requested that trial be continued twice, to occur after additional surgeries and medical treatments. In particular, Plaintiff filed an application to continue trial on September 10, 2019 in which he asserted that an "anterior cervical discectomy and fusion" surgery he had undergone on September 5, 2019 "has undoubtedly changed the status of this case" because he would not be able to "advance his damage...

Excerpt: ...urrer to the First, Fifth, and Sixth Causes of Action with leave to amend. The Court overruled the demurrer as to Plaintiff's other claims. Plaintiff voluntarily withdrew the Sixth Cause of Action for Partition when she filed her First Amended Complaint on February 11, 2021. The Court notes at the outset that Defendant did not meet his burden of establishing that he made a reasonable and good faith attempt to resolve the issues raised in the demu...

Excerpt: ...rposes of this action, they were also the employees of Sonesta and therefore Sonesta is liable for their claims based on harassment and retaliation in violation of the Fair Housing and Employment Act ("FEHA") and Labor Code § 1102.5. FMC had contractual relationship with Sonesta in which FMC provided temporary custodial workers at a hotel in Milpitas operated by Sonesta. (See SSF No. 10-13.) Under FEHA, an individual paid by a temporary service ...

Excerpt: ...e specific limitations he wants imposed on the examination. First, he wants any court order granting the examination to explicitly prohibit the examiner from taking Plaintiff's medical or clinical history. Second, he wants the order to explicitly prohibit the examiner from asking "fact finding questions about the exposure to carbon monoxide or the subject dwelling." Third, he wants the order to require Defendant to produce a record or report of t...

Excerpt: ...d not evidentiary facts); and C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 (same). Furthermore, if Plaintiff asserts one or more claims against all Defendants, as he did in the First Cause of Action, he should specify which of the four (4) individual Defendants committed each alleged violation. See Rule of Court 2.112. Plaintiff's failure to comply renders the First Amended Complaint ambiguous and uncertain. See CCP ...

Excerpt: ...ville is a suburb of Washington, D.C. Plaintiff and Defendant do not have any serious disputes about the facts underlying Plaintiff's claims. Plaintiff purchased a vintage 1970 Chevrolet Chevelle from Defendant on May 31, 2017. Defendant is a dealer in classic automobiles. Plaintiff alleges in the Complaint that he agreed to pay $90,654.00. The cost of the vehicle included its delivery from Maryland to Plaintiff's residence in Pleasanton, Califor...

Excerpt: ...er a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of...

Excerpt: ...ville is a suburb of Washington, D.C. Plaintiff and Defendant do not have any serious disputes about the facts underlying Plaintiff's claims. Plaintiff purchased a vintage 1970 Chevrolet Chevelle from Defendant on May 31, 2017. Defendant is a dealer in classic automobiles. Plaintiff alleges in the Complaint that he agreed to pay $90,654.00. The cost of the vehicle included its delivery from Maryland to Plaintiff's residence in Pleasanton, Califor...

Excerpt: ...al injuries when her bus was struck from behind by a vehicle driven by Defendant Calhoun on San Pablo Avenue, in Berkeley. Plaintiff's action was consolidated for all purposes with an earlier filed action filed by the Alameda-Contra Costa Transit District on December 12, 2019 to recover some or all of the amounts it paid to Plaintiff Gates in worker's compensation benefits. Counsel for Defendants has been attempting to take Plaintiff's deposition...

Excerpt: ...20. On November 23, 2020, prior to Defendant making an appearance, Plaintiff filed the operative First Amended Complaint on behalf of himself and other allegedly aggrieved employees for civil penalties pursuant to Labor Code § 2699. Plaintiff alleges in the First Amended Complaint that he exhausted his administrative remedies by giving notice of his claim to the Labor and Workforce Development Agency. In paragraph 7, Plaintiff prays for an award...

Excerpt: ...d the Verified Amended Answer of Permobil, Inc. to the Fifth Amended Complaint filed on January 8, 2021. Plaintiff requests the Court to sustain its demurrer to Defendant's denials of his allegations in paragraphs 60-63, 83-84, 87-89, 91-93, and 96-97 of the Verified Fifth Amended Complaint. Plaintiff argues in his demurrer that Defendant had an obligation to deny each allegation positively or according to its information and belief because the a...

Excerpt: ...20. On November 23, 2020, prior to Defendant making an appearance, Plaintiff filed the operative First Amended Complaint on behalf of himself and other allegedly aggrieved employees for civil penalties pursuant to Labor Code § 2699. Plaintiff alleges in the First Amended Complaint that he exhausted his administrative remedies by giving notice of his claim to the Labor and Workforce Development Agency. In paragraph 7, Plaintiff prays for an award...

Excerpt: ...and for Production of Documents (Set One), on Plaintiffs. When responses were not timely served, Ukoha-Ajike's counsel granted an extension and sent meet and confer letters that went unanswered. As responses have not been timely provided, any objections to the discovery requests have been waived. (CCP §§ 2031.300(a), 2030.290(a).) In opposition, Plaintiffs' counsel states that due to settlement discussions, counsel's failure to calendar discove...

Excerpt: ...Complaint that he heard "abnormal noises on three occasions," and that some interior components are defective. Plaintiff claims that Defendant's authorized repair technicians were not able to resolve the problems despite having four opportunities to do so. Defendant has adequately shown that Plaintiff Shafran agreed to the terms of the Tesla Motor Vehicle Order Agreement on October 1, 2019. The Owner Advisor that assisted Plaintiff with the confi...

Excerpt: ...ing the motion had not been served electronically as the parties allegedly agreed, but rather served via US post upon defense counsel's office and which he claimed not to have received because due to Covid Shelter in Place rules, he was working remotely. The court ordered the motion to be served electronically and continued the matter for further briefing to October 1, 2020. Defendant filed no substantive response and filed a Notice of Non-Opposi...

Excerpt: ...fit. This contention is supported by neither the facts nor the law. California voters approved Proposition 64 on November 2, 2004. In doing so, the California Supreme Court held "the voters found and declared that the UCL's broad grant of standing had encouraged '[f]rivolous unfair competition lawsuits [that] clog our courts[,] cost taxpayers' and 'threaten[ ] the survival of small businesses....' (Prop. 64, § 1, subd. (c) ['Findings and Declara...

Excerpt: ...ion, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (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." (Id.) "[T]he party movin...

Excerpt: ...nafter "Agreement") on November 19, 2017 in which Cross-Defendant CAL FMC, LLC, agreed to fully indemnify and defend Cross-Complainant Sonesta International Hotels Corporation for the allegations against Cross-Complainant as described in Plaintiff's Complaint filed on May 21, 2019. (FACross-Complaint, ¶¶ 4 and Exhibit A) The third cause of action seeks Declaratory Relief as to the rights, liability and duties of the parties pursuant to the Agre...

Excerpt: ...DARD OF LAW "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 reasonably can be inferred from those expressly pleaded and matt...

Excerpt: ...T. STANDARD OF LAW "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her," or "[t]o stay or dismiss the action on the ground of inconvenient forum." (CCP § 418.10(a).) "Failure to make a motion under this section at the time o...

Excerpt: ...lowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation" and "shall be reasonable in amount." (CCP §§ 1033.5(c)(2)-(3).) First, Plaintiff challenges $32,940.66 incurred by Defendant for 17 depositions. Plaintiff argues that those costs are not recoverable due to the fact that Defendant recovered only $8 for its cross-claims compared to the Code of Civil Procedur...

Excerpt: ...tortfeasors or co-obligors, upon giving notice[.]" (CCP § 877.6(a).) "A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." (CCP § 877.6(c).) To determine whether a settlement i...

Excerpt: ...iff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) The general venue statute states that "[e]xcept as otherwise provided by law and subject to the power of the court to transfer ...

Excerpt: ... or proceeding is pending, shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]") STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the responde...

Excerpt: ...er a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of...

Excerpt: ...exist therefor." (CCP § 527(a).) "The law is well settled that the decision to grant [a restraining order] rests in the sound discretion of the trial court." (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal. App. 4th 1244, 1251 [internal citations omitted].) "[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue [a restraining order]." (Id.) "The first is the likelihood that the plaintiff wil...

Excerpt: ...tion . . . or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with 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...

Excerpt: ... 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 reasonably can be inferred from those expressly pleaded and matters of which j...

Excerpt: ...possession of such property at the time of the commencement of the action, although it is not essential that he should show that he ever had actual possession of it." (Commercial Disc. Co. v. Cowen (1941) 18 Cal. 2d 610, 613.) "Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is broug...

Excerpt: ...motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (CCP § 425.16(b)(1).) An "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding...

Excerpt: ... 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 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 b...

Excerpt: ...roversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists," except under certain situations outlined by statute. (CCP § 1281.2.) The Court will not order arbitration of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist f...

Excerpt: ...(ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "The grounds for [the] motion . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 438(d).) A defendant may only make this motion if "the defendant has already filed his or her answer to the complaint and the time for the defend...

Excerpt: ...fearn 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 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...

Excerpt: ...ufficient 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 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," unless the "complaint ...

Excerpt: ... a motion to transfer venue, "[t]he moving party must overcome the presumption that the plaintiff has selected the proper venue." (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) It is a defendant's "burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits ...

Excerpt: ...(2).) "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." (CCP § 410.30(a).) MOTION TO DISMISS Plaintiff Robert Todd Smathers ("Plaintiff"), a California resident, brought this action against Defendant on September 30, 2020, alleging claim...