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