Excerpt: ...nded complaint at this time. Defendant, to the extent it has not already answered, is ORDERED to answer the remaining causes of action in the FAC no later than 20 days after the Court begins accepting filings of like documents via fax filing or other method. At the time of this writing the Court, generally speaking, is not accepting all standard civil filings due to the COVID-19 pandemic. IT IS FURTHER ORDERED that Defendant provide written notic...

Excerpt: ...COVID-19 pandemic. The parties are to consult the Emergency Local Rules. After service of a further amended complaint, Defendant will have 15 days after service to respond to the amended pleading by a method permitted by the Code of Civil Procedure. Defendant's time to respond shall be modified pursuant to Code of Civil Procedure section 1013, based on the method of service of the further amended complaint. DISCUSSION Before filing a complaint un...

Excerpt: ...aintiff's Complaint, filed on February 5, 2020, does not state facts sufficient to constitute a cause of action and is uncertain, including for the following reasons: The Complaint fails to identify a statutory basis for Defendant's alleged liability and facts essential to the existence of such statutory liability. (See, e.g., Eastburn v. Regional Fir Protection Authority (2003) 31 Cal. 4th 1175, 1179-1180; Lopez v. So. Cal. Rapid Transit Dist. (...

Excerpt: ...or battery, negligence, intentional infliction of emotional distress ("IIED"), fraudulent concealment, private nuisance, and public nuisance. Plaintiffs' Complaint also requests attorney fees and punitive damages. Defendants now move to strike the Complaint's requests for attorney fees and punitive damages. "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: . . . [s]trike out any irrelevant, fals...

Excerpt: ...s likewise DENIED. DEMURRER On December 5, 2019, this Court sustained with leave to amend Defendant Ukoha- Ajike's demurrer to Plaintiffs' Complaint. The Court's Order pointed out certain errors in the Complaint's allegations of duty made against Defendant Ukoha-Ajike. As stated in the Order, "the Complaint does not clearly allege any breach by Defendant Ukoha-Ajike in regards to his representation of the predecessor Administrator of the Estate, ...

Excerpt: ... she is a necessary or proper party to this action subject to the jurisdiction of this Court. (See CCP § 415.50(a).) Further, the Court finds that Sadovsky's current motion does not suffer from the defects that were present in his prior attempt to receive an order authorizing service by publication. (See Order of 11/21/2019.) The Court further notes that, in regards to his Cross-Complaint against her, Sadovsky has made several additional attempt...

Excerpt: ...r amended complaint at this time. Any Defendant who has already answered is not required to file an amended answer in response to this Order. AC Transit, to the extent it has not already answered, is ORDERED to answer the remaining allegations of the TAC no later than 20 days from the date of service of notice of entry of this Order, as modified for method of service under Code of Civil Procedure section 1013. A government entity is not liable fo...

Excerpt: ... of action brought against Permobil, in Plaintiff's words, "[c]laims for consumer fraud because Permobil falsely represented to [Plaintiff] that its wheelchair 'was safe and effective,' and because Permobil's misrepresentation was a 'substantial factor' that caused harm to [Plaintiff]." (Pltf.'s Opp., p. 2:25-27.) DEMURRER "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 C...

Excerpt: ... but no later than May 15, 2020. When a motion to compel discovery is granted, a court shall order the party to whom discovery was directed to pay the reasonable expenses, including attorney fees, of the party propounding the discovery. (See, e.g., CCP §§ 2023.030(a), 2030.290 et. seq., 2031.300 et. seq.) A court, however, is limited to awarding only reasonable expenses. (See Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 2...

Excerpt: ..."LWDA") is not present at the negotiating table, the Court's review of a PAGA settlement must make sure that the interests of the LWDA in civil enforcement are defended and that the settlement is fair, adequate, and reasonable under all the circumstances. (See O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1133; see also Gov't Code § 12652(e)(2)(B) [requiring False Claims Act qui tam settlements be "fair, adequate, and ...

Excerpt: ... 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, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (CCP § 1281.2; see also CCP § 1281.7; cf. 9 USC §§ 1 et. seq.) Here, Plaintiffs file...

Excerpt: ...pressed concern that Plaintiff will appear at her deposition without producing documents. (See, Def.'s Reply, p. 6.) However, Plaintiff herself appears to indicate otherwise, as in her written opposition she states she will "appear for her deposition on March 17, 2020 with documents." (See Pltf.'s Opp., p. 1:21-22; see also Dec. D. Feder, ¶ 13 [stating same].) In any case, the Court does not rule on this issue at this time, because the Court vie...

Excerpt: ...ts of a fraud cause of action. A cause of action for fraud must be alleged with particularity. Simply using a Judicial Council form does not make a cause of action demurrer-proof. Here, Plaintiff alleges a "written contract," payment by Plaintiff to Defendants, and that Defendants "did nothing to help Plaintiff reduce her tax liability." (FAC, p. 5.) These allegations may be sufficient to constitute a cause of action for breach of contract, but t...

Excerpt: ...rder. Permobil, to the extent it has not already answered, is ORDERED to answer the remaining allegations of the TAC no later than 20 days from the date of service of notice of entry of this Order, as modified for method of service under Code of Civil Procedure section 1013. The TAC's Tenth, Eleventh, and Twelfth Causes of Action involve allegations of fraud directed at Permobil. Permobil does not demur to the other causes of action brought again...

Excerpt: ...2020. Unless the parties have or do agree to a stipulation regarding confidentiality, as suggested by Intervenor, sensitive information should be redacted and a redaction log provided by Intervenor to Defendant. B. IDENTIFICATION OF WITNESSES (FORM INTERROGATORY 12.1) To the extent it has not already done so, Intervenor is ORDERED to supplement its response as stated in the parties' Joint Status Report filed on February 6, 2020. C. INCIDENT REPOR...

Excerpt: ...r amended complaint at this time. Any Defendant who has already answered is not required to file an amended answer in response to this Order. AC Transit, to the extent it has not already answered, is ORDERED to answer the remaining allegations of the TAC no later than 20 days from the date of service of notice of entry of this Order, as modified for method of service under Code of Civil Procedure section 1013. A government entity is not liable fo...

Excerpt: ...y Area Rapid Transit District ("BART") from (1) prohibiting Petitioner from returning to her workplace at eBART in Antioch, California; (2) materially altering Petitioner's work assignments or reporting structure as they existed on October 20, 2019; or (3) taking disciplinary action against Petitioner for returning to work at eBART in Antioch and performing the work assignments and reporting structure as they existed on October 20, 2019. In decid...

Excerpt: ...the Cross-Complaint) only, the cause of action is no longer operative within the Cross-Complaint as to Plaintiffs. Defendants need not file an amended cross- complaint at this time. Any Cross-Defendants who have already answered the Cross-Complaint are not required to file an amended answer to the Cross-Complaint at this time. To the extent they have not already done so, Plaintiffs shall answer the remaining allegations brought against them in th...

Excerpt: ...di's right to arbitrate, but is affirmatively seeking its own relief in obtaining an order compelling arbitration of its claims. One party may join another party's motion when the joining party seeks the same relief and has no independent burden in regards to providing support for the motion. (See Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660- 662.) Here, however, Teamsoft and Nakidi's factual relationship to the arbitration a...

Excerpt: ...er, Defendant has now provided the subject discovery responses and paid the subject monetary sanctions. (See Def.'s Opp., pp. 3:15-4:1 [citing to evidence].) Thus, the underlying basis for this motion is moot. Second, Plaintiff filed this motion during a period of time where Defendant was switching representation, something Plaintiff was aware of. (See Dec. B. Tengberg, ¶ 12.) Once the transition was completed, by all accounts, Defendant's new c...

Excerpt: ...ime. Any Defendant who has already answered is not required to file an amended answer in response to this Order. Oakland, to the extent it has not already answered, is ORDERED to answer the remaining allegations of the SAC no later than 20 days from the date of service of notice of entry of this Order, as modified for method of service under Code of Civil Procedure section 1013. A government entity is not liable for punitive damages. (See Gov't C...

Excerpt: ...aintiff are parties to a written agreement requiring arbitration of the claims asserted against Nakidi in this lawsuit and that Plaintiffhas not made a sufficient showing that Nakidi waived the right to arbitrate the agreement or that "there is a possibility of conflicting rulings on a common issue of law or fact" if the Court orders arbitration of the claims against Nakidi, but not the claimsagainst Defendant Teamsoft Technologies, LLC ("Teamsof...

Excerpt: ...After filing his Complaint, Plaintiff Satya Velu applied for a temporary restraining order against Defendant. A temporary restraining order was issued on January 28, 2020 and this motion was also ordered. Defendant has not timely opposed the motion in writing. PRELIMINARY INJUNCTION In deciding whether to issue a preliminary injunction, the Court weighs two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on ...

Excerpt: ...try of this Order, as modified for method of service by Code of Civil Procedure section 1013. This action involves, in Plaintiff's words, "a serious trip-and-fall injury caused by an unmarked 3 inch high protruding section of sidewalk at the intersection of 12th and Jackson Streets immediately adjacent to a large 5 story structure in . . . [downtown] Oakland. . . . caused by invasive roots from an adjacent tree." (Pltf.'s Opp., p. 4.) Plaintiff a...

Excerpt: ...ement. Plaintiff eventually vacated the property and now allege in their Complaint that Defendants wrongfully refuse to return Plaintiff's security deposit. Plaintiff now seeks prejudgment attachment of "[a]ny property of [Defendant Vima Harrison 1, LLC]." (See Ntc. of App. filed 1/16/2020, p. 2, item 9(a).) Initially, Plaintiffs' Application is defective. Plaintiffs are corporate plaintiffs; however, the Application is signed by Plaintiffs' liti...

Excerpt: ... communications between counsel and also between counsel and the Court].) To the extent necessary, the Court reopens discovery for the limited purpose of hearing this motion and to permit the deposition at issue here to take place. (See CCP § 2024.050(a).) Too the extent they have not already done so, the parties are ORDERED to meet and confer regarding setting a reasonable date, time, and location for the deposition of Defendant BART's person m...

Excerpt: ...alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Goncharov v. Ube...

Excerpt: ...try of this Order, as modified for method of service by Code of Civil Procedure section 1013. This action involves, in Plaintiff's words, "a serious trip-and-fall injury caused by an unmarked 3 inch high protruding section of sidewalk at the intersection of 12th and Jackson Streets immediately adjacent to a large 5 story structure in . . . [downtown] Oakland. . . . caused by invasive roots from an adjacent tree." (Pltf.'s Opp., p. 4.) Plaintiff a...

Excerpt: ...try of this Order, as modified for method of service by Code of Civil Procedure section 1013. This action involves, in Plaintiff's words, "a serious trip-and-fall injury caused by an unmarked 3 inch high protruding section of sidewalk at the intersection of 12th and Jackson Streets immediately adjacent to a large 5 story structure in . . . [downtown] Oakland. . . . caused by invasive roots from an adjacent tree." (Pltf.'s Opp., p. 4.) Plaintiff a...

Excerpt: ...to alternative dispute resolution . . . ." The demurrer is OVERRULED for several reasons: First, section 5930(a) applies to members of the association and the association itself. Section 5930(a) does not apply here because Respondent and Co-Respondent Raj Patel (who does not appear to be a party to the demurrer) are not alleged by the Petition to be members of the association. Neither are they alleged to be "the" association itself. Thus, section...

Excerpt: ...e process of being transferred from the County of Mendocino to the County of Alameda at the time the subpoenas issued. Thus, Petitioners were not unreasonable in their actions. Importantly, the Superior Court is one state court organized into branches by county. (See San Joaquin Drainage Dist. v. Sup. Ct. (1925) 196 Cal. 414, 432.) Thus, Respondent's perception of Mendocino County's Court as being an entirely separate court is false. Also, the ma...

Excerpt: ...mely service on Plaintiff at his address of record, and Plaintiff has not timely submitted any written opposition. The Court finds AC Transit's meet and confer efforts adequate. The demurrer demonstrates that Plaintiff's Complaint, filed on October 25, 2019, does not state facts sufficient to constitute a cause of action and is uncertain, including for the following reasons: First, a complaint must contain "a statement of the facts constituting t...

Excerpt: ... 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.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpretation, reading it as a whole and ...

Excerpt: ...ue an insurer directly for the torts of its insured. (Mel H. Binning, Inc. v. Safeco Ins. Co. (1977) 74 Cal.App.3d 615, 619; see also Coleman v. Gulf Ins. Group Co. (1986) 41 Cal. 3d 782, 794-795 [discussing third part bad faith claims].) Here, Defendant Forget is CSAA's insured. Accordingly, here, Plaintiff's causes of action brought against CSAA as an insurer cannot be maintained. The demurrer to each and every cause of action brought against C...

Excerpt: ...on for labor condition application with the US Labor Department for Ravi Nakidi." Teamsoft contends Plaintiff's failure to provide documents responsive to Request No. 9 is inappropriate and subject to a motion to compel. The Court disagrees. Plaintiff need not comply with Request No. 9. The Court reaches this decision for multiple reasons, each of which would be sufficient to DENY the motion on its own, as follows: First, the Court finds Plaintif...

Excerpt: ...espond fully, including producing responsive documents, as necessary, within 15 days from the date of service of notice of entry of this Order, as modified for method of service under Code of Civil Procedure section 1013. The Court previously ordered Defendant to respond to Plaintiff's requests for production on October 3, 2019. Defendant eventually responded, serving written responses to the requests for production on October 24, 2019. (See Exh....

Excerpt: ...f Documents Nos. 2 through 10, and Requests for Admission Nos. 2 through 5. The date for Defendant's compliance with this Order in regards to discovery responses is 30 days from the date of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. Defendant Andy Yang is ORDERED to serve full, complete, and verified further responses, without objection (other than objection as to attorn...

Excerpt: ...nt. (See FAC, ¶¶ 15-31, 39-41.) Specifically in regards to the Moving Defendants, Plaintiff alleges they were real estate agents and a brokerage firm working for the landlord, who engaged in menacing and harassing activities against Plaintiff while endeavoring to sell the real property containing Plaintiff's former residence. (See FAC, ¶¶ 10, 108.) Plaintiff has alleged causes of action against the Moving Defendants for elder abuse and for un...

Excerpt: ...tiating or participating in any manner in any lien assessment proceeding, including but not limited to causing or participating in the recording in the public records of a claim of lien against real property owned by Petitioners and by members of the Bayside Court Property Owners' Association. PROCEDURAL POSTURE After filing their initial Petition, Petitioners applied for a temporary restraining order against Respondent. A temporary restraining o...

Excerpt: ...intiff's compensatory damages are capped at $100,000 each (total of $200,000), which is the defendant's insurance policy limits with GEICO." (Exhibit B to the Declaration of Edgar Hawkyard filed December 17, 2019. The matter was submitted to arbitrator Patricia Tweedy, although the arbitrator was not advised of the pre-arbitration "cap" on recovery. Ms Tweedy issued her decision and award on September 26, 2019 in which she awarded $107,786 to pla...

Excerpt: ...d an unopposed motion to compel Plaintiff's discovery responses. Plaintiff did not and has not complied with the Court's order, including its order that Plaintiff pay monetary sanctions. The present motion is unopposed. Accordingly, for the reasons discussed, Defendant's motion is GRANTED. LEGAL STANDARDS The Court has discretion to issue terminating sanctions in response to abuses of the discovery process, including: "(1) An order striking out t...

Excerpt: ...intiff's compliance with this Order in regards to discovery responses is 10 days from the date of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. Defendant's request for an order compelling responses to form interrogatories, served on Plaintiff Diane Atkinson on or around September 25, 2019, is GRANTED. Plaintiff is ORDERED to serve full, complete, and verified responses, wit...

Excerpt: ... of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. Defendant is FURTHER ORDERED to provide further verified responses, without objection except for privilege or attorney work product, and, as appropriate, to produce additional documents responsive to Plaintiff's Requests for Production of Documents Nos. 13, and 20-23. If a requested document does not exist or otherwise canno...

Excerpt: ...ated to the substantive anti-SLAPP arguments, but refraining to award of fees or costs at that time for procedural reasons].) Accordingly, pursuant to section 425.16(c), Defendants are entitled to recover fees and costs from Plaintiffs as the prevailing parties. The Court has reviewed the evidence provided supporting Defendants' request for fees and costs, which covers the time period between March 18, 2019 and November 13, 2019, and finds the am...

Excerpt: ...ct that Cross-Complainant implicitly and inferentially admits to at various points within the FAXC. (See, e.g., FAXC, ¶ 15). The FAXC's second cause of action for negligence fails because Cross-Complainant does not have standing to bring this claim against Champion Mortgage, as Cross- Complainant is not a borrower under the loan at issue. (See FAXC, ¶ 4.) Further, Cross-Complainant has not satisfactorily established there is a legal duty for a ...

Excerpt: ...nia (the "Property") until a trial in the underlying matters pending before this Court can be properly heard is DENIED. In deciding whether to issue a preliminary injunction, the Court weighs two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits; and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. The Court's determination is guided by a mix of the po...

Excerpt: ... Safety Code section 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $1,500.00 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b); and (E) and the allocation of any additional settlement payments to Plaintiff is in the public interest as set forth in Code of Regulat...

Excerpt: ...requests. Defendant failed to appropriately respond to attempts to meet and confer. On July 3, 2019, this Court granted an unopposed motion to compel Defendant's discovery responses. Defendant did not and has not complied with the Court's order. The present motion is unopposed. Accordingly, for the reasons discussed, Plaintiff's motion is GRANTED. LEGAL STANDARDS The Court has discretion to issue terminating sanctions in response to abuses of the...

Excerpt: ...ion alleges that within the last four years Defendant became indebted to Plaintiff on an open book account for money due, and count 2 of the second cause of action alleges that within the last four years Defendant became indebted to Plaintiff because an account was stated in writing between the parties in which it was agreed that Defendant was indebted to Plaintiff. (Complaint, ¶ CC-1(a)(1), (2).) In the instant motion, Plaintiff introduced evid...

Excerpt: ...n for reporting unlawful/unfair business practices which are specified in her complaint and were addressed at length in two days of her deposition and in her written responses to discovery." (Plaintiff's Exh. K.) To the extent necessary, Defendants must provide further responses in good faith using this definition of the word "INCIDENT." In regards to Form Interrogatory No. 12.2, Defendants must clearly, completely, and succinctly provide to Plai...

Excerpt: ...5249.6 and 25249.10(c); (B) the warning required by the CJ is clear and reasonable in compliance with Health & Safety Code section 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $100,000.00 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b); and (E) and the allocat...

Excerpt: ...ading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Goncharov v. Uber Techs., Inc. (2018) 19 Cal.App.5th 1157, 1165.) Here, Defendants Theodore Pendleton and All County Bay Area Property Management have demurred to three of Plaintiff Antoinette Bre...

Excerpt: ...ions, (FAC, ¶¶ 56, 78). "The court may, upon a motion . . . 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; see also CCP § 435.) "In order to survive a motion to ...

Excerpt: ...al. 4th 541, 558-559 [discussing indemnity].) On April 11, 2018, this Court confirmed that Safeway had several options in meeting its indemnity obligations, one of which was waiting until a later date to reimburse Kimco its attorney fees and costs. As to Kimco, Safeway, and their dispute with Plaintiff, the litigation has now largely concluded, as both Safeway and Kimco have either been granted judgment in their favor or settled with Plaintiff, o...

Excerpt: ... arbitrate a controversy 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, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (CCP § 1281.2; see also CCP § 1281.7; 9 USC �...

Excerpt: ...n Defendant Jett and Plaintiffs Marlon Smith and Crystal Kelley ("Plaintiffs") was not made in "good faith" within the meaning of Code of Civil Procedure section 877.6. A party asserting that a settlement agreement was not made in good faith within the meaning of section 877.6 bears the burden of proof on that issue. (See C.C.P. § 877.6(d); Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499.) The challenging party must demonst...

Excerpt: ..."Polar"), have since been filed in the action. The Cross-Complaints largely seek indemnity and contribution. Plaintiff is not a cross-defendant to the Cross-Complaints. Polar has recently, on August 13, 2019, and with permission of the Court, added a new Cross-Defendant to its Cross-Complaint. The new Cross-Defendant had not previously appeared in the action. Trial of the action has been set for November 15, 2019. With this motion, Polar seeks to...

Excerpt: ...the parties entered into a stipulated protective order regarding the exchange of confidential information during discovery. On July 17, 2019, Plaintiffs filed a motion to compel, which was heard on August 8, 2018. In support of their motion, Plaintiffs lodged portions of the deposition testimony of Michael Tang as Exhibit 14. Mr. Tang is the person most qualified for Defendant DODG Corporation. The deposition transcript of Mr. Tang had previously...

Excerpt: ...ittick's deposition and this motion; and also to (2) Dr. Steven Hotze, who, it has been established to the Court's satisfaction, is a high level employee or founder of PPILP or other Defendants in this case. The parties are instructed to meet and confer in order to schedule appropriate deposition dates to take place in the near future, which, absent a written agreement by the parties stating otherwise, must take place within 45 days of service of...

Excerpt: ...ee Decl. of John C. Brown, Exh. 1.) The Subpoena seeks: "Annual or Monthly Statements of Account sufficient to show all transactions in the time-periods indicated in any depository accounts maintained at Wells Fargo Bank ["WFB"] ... in any of the following names: ... 2 Blutether Technology Inc. (2013 to present)...." (Id., Attachment 3.) Though the Subpoena also seeks records of accounts of five other parties, BT moves to quash only as to the BT ...

Excerpt: ...though neither the notice of motion nor supporting declaration discloses or explains this, the memorandum states in a conclusory manner that the amendments also include "[r]efinement and clarification of the Breach of Contract and Promissory Fraud allegations." (Memo., p. 3.) The court determines that the motion does not sufficiently comply with Cal. Rule of Court (CRC) 3.1324 and does not demonstrate cause for permission to amend the cross-compl...

Excerpt: ...Complaint ("3ACC") filed by Cross-Complainants Charles P. Sweeney ("Sweeney") and Axxis Financial Group, LLC ("Axxis") (collectively "Cross-Complainants") on November 28, 2016. Gonzalez and Brown move for summary judgment as to the entire 3ACC. All three Cross- Defendants move for summary adjudication as to each of the causes of action in the 3ACC: the First Cause of Action (breach of contract) and the Second Cause of Action (promissory fraud). B...

Excerpt: ... insufficiently specific as to the relief requested, stating that Cross-Complainants move "for a finding of misuse of discovery" by Cross-Defendants pursuant to "section 2023.01.310 of the California Code of Civil Procedure." There is no such statute. Further, even if the court were to construe this as section 2023.010, cited in the accompanying memorandum, that statute defines "[m]isuses of the discovery process" but does not authorize a motion ...

Excerpt: ...rst Cause of Action in the 3ACC, on many of the grounds stated in the instant motion. Thus, to that extent, the instant motion is dropped as moot, as the court has already granted much of the requested relief in the context of that motion. The court notes that Cross-Defendants make this motion only "as an alternative to their Motion for Summary Judgment...." (Notice, p. 2.) To the extent the court is denying that motion - i.e. as to the Second Ca...

Excerpt: ...on. Having considered the moving papers and the record on file in this matter, including evidence of Plaintiff's failure to obey the court's order of February 28, 2019, and for good cause shown, IT IS HEREBY ORDERED: 1. The Complaint filed by Plaintiff on June 26, 2018, is hereby STRICKEN and Plaintiff's affirmative action against Defendants is DISMISSED with prejudice. (See C.C.P. §§ 2030.290(c) and 2023.030(d)(1).) 2. Plaintiff and its counse...

Excerpt: ... opposition. Further, the motion makes a sufficient showing for the requested relief. More specifically, the motion seeks reconsideration of the court's order of June 27, 2019, stating as follows: "The Request for Default Judgment is rejected and NOT ENTERED for the following reason(s): NO valid proof of service on file for service of Cross Complaint on Pacific Construction & Design[]. Appears to have been served by mail which is not proper servi...

Excerpt: ...ate facts sufficient to constitute a cause of action against it, for all the reasons discussed in the memorandum of points and authorities. (See C.C.P. § 438(c)(1)(B)(ii).) Such reasons include, without limitation the following. First, although the motion addresses the complaint designated as "Amended (Number): 3," filed on March 11, 2018, in fact the operative complaint appears to be the complaint designated as "Amended (Number): 1," filed on O...

Excerpt: ...emur to Count One, which asserts liability against the City based on Government Code section 835. As to Counts Two and Three, Defendants' demurrer is sustained for all the reasons discussed in the demurrer and supporting memorandum, which cites legal authority supporting Defendants' arguments. Without limitation of the foregoing, the deficiencies in those "counts," as pleaded, include the following. First, Counts Two and Three fail to identify a ...

Excerpt: ...nt 520. The motion seeks summary adjudication as to nine of the twenty-one affirmative defenses included in the "Answer to Plaintiff's Complaint for Wrongful Death (Case Number HG18929026)" filed on February 4, 2019. The answer is directed to the "Complaint for Damages" filed by Dollarhide, along with co-plaintiff Marcia Ellwanger, on November 19, 2018, in Case No. HG18929026, which was consolidated with Case No. RG18899177 on January 30, 2019. T...

Excerpt: ...as addressed in this motion on an item-by-item basis. (See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435-1436, 1439; Manzetti v. Superior Court (1993) 21 Cal.App.4th 373, 380, fn.8.) The motion seeks to quash seven Deposition Subpoenas for Production of Business Records ("Subpoenas") served on or about June 24 or June 27, 2019 by Defendants Kilkare Woods Association, Inc. et al. ("Defendants"). This is the third of three motions to ...

Excerpt: ...f records for: (1) Comcast Corporation ("Comcast"); (2) Pleasanton Garbage Service, Inc. ("PGS"); and (3) Acorn Onsite, Inc. ("Acorn"). (Decl. of Allyssa Villanueva, Exhs. C, D and E.) The Subpoenas to PGS and Comcast seek (in essence) all billing statements and other records pertaining to Kim Johnson from January 1, 2015 to the present. (Id., Exhs. C and E.) The Subpoena to Acorn seeks: "All records regarding the subject property located at 2323...

Excerpt: ...4) Washington Hospital, "Billing DP." (Decl. of William M. Artigliee, Exh. 1.) The Subpoenas were served on behalf of Defendant Fremont Healthcare Operating Company LP, dba Fremont Healthcare Center ("Fremont Healthcare") on or about June 21, 2019. (Id.) All four Subpoenas seek records pertaining to Plaintiff John Ellwanger ("Decedent"), who died on December 8, 2017 (as alleged in the consolidated case). The motion is based on arguments that the ...

Excerpt: ...s asserted against Nakidi in this lawsuit and that Plaintiff has not made a sufficient showing that Nakidi waived the right to arbitrate the agreement or that "there is a possibility of conflicting rulings on a common issue of law or fact" if the court orders arbitration of the claims against Nakidi but not the claims against Defendant Teamsoft Technologies, LLC ("Teamsoft") in this action. (See C.C.P. § 1281.2; 9 U.S.C. § 2.) A. Existence and ...

Excerpt: ...cation as to each of the First through Eighth Causes of Action therein. Because summary judgment may be granted only if Defendants are entitled to judgment as to each and every cause of action (see C.C.P. § 437c(c)), the court proceeds by addressing the motion for summary adjudication as to each such cause of action. A. First Cause of Action The motion for summary adjudication as to the First Cause of Action is GRANTED. This cause of action alle...

Excerpt: ... return her personal property in accordance with Civil Code sections 1965, 1980 through 1991, C.C.P. §§ 715.010 through 715.030 and 1174, and/or the various notices set forth as Exhibits A, B-1, B-2, C and D to the supplemental opposition filed on August 8, 2019. As currently pleaded, the cause of action is deficient, including because it alleges facts that contradict those in Plaintiff's prior pleadings, in the exhibits to the SAC, and in the ...

Excerpt: ...fendants caused harm to Plaintiffs through their willful failure to remedy the aforementioned defective conditions," and the other allegations in paragraphs 101 through 105, are conclusory and insufficient to support punitive damages if intended to apply to FPI along with the other defendants. Plaintiffs have not included specific factual allegations as to conduct by agents or employees of FPI, as distinguished from those of the other defendants,...

Excerpt: ...g by specifying the acts or omissions of a representative of FPI (as distinguished from the various other defendants) that forms the basis of the cause of action and not simply referring to acts or omissions of "defendants" in the aggregate. (See, e.g., Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 763.) A cause of action for violation of Business & Professions Code section 17200...

Excerpt: ...ugust 6, 2019. Further, the parties filed a stipulation on July 19, 2019 (granted on July 25, 2019) which addresses Plaintiffs' concerns about the scheduling of Plaintiffs' contemplated motion for summary adjudication. In the reply, filed on August 1, 2019, Plaintiffs do not seek an order compelling those depositions but instead seek monetary sanctions in connection with those depositions and the Khan deposition. As reflected below, that aspect o...

Excerpt: ...which was directed to Richmond Dental Building ("Dental Subpoena"). Both subpoenas seek records pertaining to decedent Stanley Mitchell ("Decedent"), who died on July 10, 2018. The claims in this case, brought by Decedent's son (of the same name), arise from Defendant's handling of Decedent's remains. The motion is based on two arguments: (1) the subpoenas unreasonably infringe on Decedent's constitutional right to privacy under California law; a...

Excerpt: ...e court notes that Defendants William Tank Lines and Roye Anthony Rodriguez ("Defendants") do not oppose this aspect of the motion. The motion to strike the remainder of the seventh affirmative defense is DENIED. The fact that some of the allegations are duplicative of those in other affirmative defenses is not a sufficient basis to strike them. The fact that Plaintiffs had not demurred to the seventh affirmative defense in the First Amended Answ...

Excerpt: ...int is not the proper court"; and (2) C.C.P. § 397(c), which authorizes a change of venue "[w]hen the convenience of witnesses and the ends of justice would be promoted by the change." The court determines that UC has met its burden as to both alternate grounds and that Plaintiff has not introduced evidence or authority to the contrary. First, though Alameda County is the place of UC's principal office, this in itself does not make it a proper v...

Excerpt: ...ter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit." (C.C.P. § 437(b).) The instant motion is not accompanied by a request for judicial notice. Instead, it is based on matters set forth in a Declaration of Philip E. Yeager, Defendant's counsel. A "defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence.......

Excerpt: ...uction of documents, against defendant and/or cross-complainants Pathos Management Group, LLC, Nicholas Eftimiou, John Eftimiou and Anna Eftimiou" ("Cross-Complainants"). (Notice of Motion, p. 2.) Though the notice of motion does not specify the particular requests for production ("RPDs") to which Movants seek responsive documents, the memorandum addresses RPD No. 24 to Nicholas, RPD No. 21 to John and Anna, and RPD Nos. 1- 13, 15-18, 20-23, 29, ...

Excerpt: ...t [Dhaliwal] Law Group" (Complaint, ¶ 11), and a director or officer of a corporation does not incur personal liability for torts of the corporation "merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done." (Memo., p. 4, citing 3 Witkin, Sum. of Cal. Law (7th ed. 1960) § 48(c), and Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 505.) As established in the cited au...

Excerpt: ...cember 31, 2018." (Decl. of Ray T. Rockwell, Exh. A, ¶ 3.) The written Agreement states that "[i]t is the intention of the Parties to settle and dispose of, fully and completely," the claims and disputes reflected in the instant lawsuit or arising from the operative facts alleged herein. (Id., ¶ 2.4.) The Agreement contains the parties' mutual releases of claims against each other arising from such facts, except as to the rights or claims creat...

Excerpt: ...ponse, without objections, stating he conducted a diligent search and made reasonable inquiries but he "never had the requested documents" (cell phone records from April 25, 2015). Plaintiff asserts Rodriguez has a duty to obtain them, even if they are not in his possession, by asking his wireless carrier, Verizon, for them. Rodriguez asserts the "meet and confer" efforts as to RPD, Set 3, No. 1 were deficient, as Plaintiff failed to address the ...

Excerpt: ...at: the defendant breached its duty to exercise ordinary care and that the breach was a substantial factor in bringing about the plaintiff's harm. (Id.) "The cases require that an owner must have actual or constructive notice of the dangerous condition before incurring liability." (Id., at p. 1203.) "The plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it." (Id.) Here, the s...

Excerpt: ...ce at Deposition. In that ruling, the court noted that it "finds the parties' discussiono f the merits of the case and the statements and conduct at mediation irrelevant, distracting and disconcerting. The court is also disturbed by the unprofessional tone in some of the communications between couinsel that preceded the motion as well as counsel's inabilitly to work together to achieve a compromise of their positions so as to avoid the need for a...

Excerpt: ... Inc. ("Genentech"), on May 17, 2019; and (2) Deposition Subpoena for Production of Business Records served on the Custodian of Records for Wells Fargo Bank, N.A. ("WFB"), on May 16, 2019. (Decl. of Allyssa Villanueva, Exhs. C and D.) Those subpoenas seek: "Any and all documents and records, and all writings, including, but not limited to, employment, payroll and applications for employment, work absence and incident reports, personnel records, p...

Excerpt: ...opposition to the demurrer filed by Defendant Teslights Corporation ("TES"), that opposition did not address the instant demurrer and was not served on counsel for AOD. In addition to its being unopposed, the demurrer demonstrates that the FAC fails to plead a sufficient cause of action against AOD for negligence, including factual allegations (and not just conclusions) supporting the required elements that AOD owed Plaintiff a legal duty to use ...

Excerpt: ...erved a valid objection under C.C.P. Section 2025.410. (See C.C.P. § 2025.450(a); Defendants' Exhibit Index In Support of Motion to Compel, Exhibit D.) Although Defendants served a document captioned "Plaintiff Macy's West Stores, Inc.'s Objection to Notice of Taking Deposition of Plaintiff Macy's West Stores, Inc." on May 22, 2019 (id., Exh. G), the objections stated therein are not valid objections under section 2025.410. In particular, the pr...

Excerpt: ...More specifically, the complaint in this action includes three causes of action against Katya. The First Cause of Action, for motor vehicle negligence, alleges that Vadim operated the motor vehicle that caused injuries to Plaintiff and that Vadim and Katya owned the motor vehicle which was operated with their permission. The Second Cause of Action, for general negligence, is asserted against both Vadim and Katya but alleges only that Vadim was ne...

Excerpt: ...discussed in the accompanying memorandum, the request is expressly based on Code of Civil Procedure section 664.6. Section 664.6 states in relevant part as follows: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement...." The purpor...

Excerpt: ...e not filed any opposition to refute any of CSAA's arguments about the deficiencies in the complaint. Further, the demurrer makes a sufficient showing that the causes of action in the complaint are deficient as a matter of law. Among other things, the demurrer makes a sufficient showing that both causes of action in the complaint are time-barred. The First Cause of Action for breach of contract alleges that the parties entered a written agreement...

Excerpt: ...nt showing of the probable validity of Plaintiff's claim to possession of the 2014 Harley Davidson vehicle described therein. Plaintiff has also established that Defendant has no equity in the vehicle, such that no undertaking is required. (See C.C.P. § 512.060(a)(2).) Defendant's undertaking to prevent repossession of the vehicle is set in the amount of $13,225.00 as requested. (See C.C.P. § 515.010(b).) Plaintiff has established that there is...

Excerpt: ...The requests for exemplary damages, as well as the allegations to the effect that Defendants' actions were "malicious, fraudulent, and oppressive," are conclusory and deficient as currently pleaded. Though Plaintiff incorporates all allegations in paragraphs 1 to 41, the allegations therein describe conduct by Defendants that, as a general matter, was negligent or in violation of habitability requirements. (See, e.g., Complaint, ¶ 35 ["Defendant...

Excerpt: ...sponses to the Requests for Admission, Set One ("RFAs"), served on Plaintiff (while she represented herself) on March 11, 2019. Nevertheless, on April 19, 2019, Plaintiff substituted counsel Dolores Victor as her attorney of record, and on May 8, 2019, Plaintiff served Defendant with verified responses to the RFAs, without objections. The court has reviewed those responses and determines that they are "in substantial compliance with [C.C.P.] Sect...

Excerpt: ...e), WITH LEAVE TO AMEND to allege facts sufficient to constitute a cause of action against one or both Defendants for intentional infliction of emotional distress, including specifying the "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causati...

Excerpt: ...fenses to the five existing causes of action in the SAC, including pleading "ultimate facts" (not just legal conclusions) supporting such affirmative defenses and "refer[ring] to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished." (C.C.P. § 431.30(g); see also FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [affirmative defenses should be "averred as carefully an...

Excerpt: ...er 13, 2018. The First Cause of Action (breach of contract) alleges that WFB and Defendant entered into a written contract attached as Exhibit 1 to the complaint - i.e. a Consumer Credit Card Customer Agreement & Disclosure Statement - that required Defendant to make timely payments for the moneys advanced by WFB, and that Defendant breached the agreement by failing to pay as agreed, causing damage in the amount of $10,935.35, plus attorney's fee...