Excerpt: ...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 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 defens...

Excerpt: ...d to employees that worked the same shifts as Plaintiff in the San Jose (10/15/17-1/7/18), Sacramento (4/18/19-5/6/19), and Antioch Emergency Departments (5/26/19-7/15/19). MOTION TO COMPEL Plaintiff seeks to compel a further response from Defendant as to one interrogatory asking for the "names, addresses, telephone numbers, and email addresses of all employees of [Defendant's] that worked with Plaintiff, limited to those employees that were in t...

Excerpt: ...urteen (14) days from the date of this Order. STANDARD OF LAW "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.) An "irrelevant mat...

Excerpt: ...et No. 1) Nos. 36-82, Form Interrogatories (Set No. 1) No. 17.1, and Request for Production of Documents (Set No. 1) No. 20. Defendant's Request for Sanctions is GRANTED IN PART. IT IS ORDERED THAT sanctions in the amount of $3,560.00 is payable by Plaintiff to Defendant no later than thirty (30) days from the date of this Order. As a threshold issue, Plaintiff argues that Defendant has not adequate met and conferred prior to bringing this Motion...

Excerpt: ...es 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 not owe a duty to th...

Excerpt: ...otion was served. However, the only evidence provided by Cross-Complainant is a declaration from an attorney he retained to support him in this action, and Cross-Defendant's communication with that attorney. Cross-Defendants explain in reply that it had tried multiple times to contact Cross-Complainant directly, who is acting in pro per, but that he never responded. (Declaration of Bruce E. Methven ¶¶ 2-3; Declaration of Kelley Snider ¶¶ 8-14...

Excerpt: ...hether 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 a demurrer the facts alleged in the pleading are deemed to be true, however improbable ...

Excerpt: ...ader 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 a demurrer...

Excerpt: ...gedly owned and operated by Defendant. (See Complaint, ¶ 6.) Plaintiff's Complaint alleges causes of action for general negligence, and negligent hiring, supervision and retention. Plaintiff's Complaint also requests punitive damages. Defendant now moves to strike the Complaint's request for 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, f...

Excerpt: ...or summary adjudication on the causes of action for negligent supervision and negligent retention, contending that because it has admitted vicarious liability for the negligence, if any, of AMV, it cannot also be sued for negligent supervision and/or retention of AMV. Defendant Golden Cargo's response to Plaintiff's request for admission 2 was as follows: "REQUEST FOR ADMISSION NO.2: Admit that Martinez-Victoria was in the course and scope of his...

Excerpt: ...ng 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. Uber Techs., Inc. (2018) 19 Cal.App.5th 1157, 1165.) Here, Defendant Landau has demurred to both of Plaintiff's causes of action in t...

Excerpt: ...Cal Physicians' Servs. (2000) 81 CalApp.4th 39, 43. The motion must be overruled if the factual allegations ... state a cause of action under any possible legal theory, regardless of the causes of action set forth in the complaint itself. Wolfe v. State Farm (l996) 46 Cal.App.554, 559. All facts are to be construed in the light most favorable to plaintiff. Perdue v. Crocker Nat'l Bank (l985) 38 Ca.3d 913, 922. But allegations which express mere c...

Excerpt: ...to expunge the notice." (CCP § 405.30.) "The claimant shall have the burden of proof[.]" (Id.) "[T]he court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim." (CCP § 405.31.) "Real property claim" means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) th...

Excerpt: ...osing 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 actions or proceedings . . . the superior court in the county where the defendants or ...

Excerpt: ...e complaint or cross-complaint against him[;] [and/or] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy w...

Excerpt: ...l. App. 3d 486, 488-89.) A court's discretion is usually exercised liberally to permit amendment of the pleadings, and it is a rare case in which denial of leave to amend can be justified. (See, e.g., Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) "[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment." (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 76...

Excerpt: ...nt Comerica Bank brings this Petition to Vacate Arbitration Award on the grounds that the arbitrator in this action (hereinafter "Arbitrator") made material omissions and misrepresentations in the initial disclosures and continuing disclosures he was required to provide to the parties as to any grounds for disqualification in violation of California's legal disclosure rules set forth in the California Arbitration Act, California's Ethics Standard...

Excerpt: ...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 statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; or (3) a demand for judgment requesting relief...

Excerpt: ...produce responsive documents pursuant to that Request for Production of Documents. Plaintiff states that PPILP initially responded to this discovery on April 29, 2019 by objecting to every request on the grounds of lack of jurisdiction over PPILP and asserting that the requests are overly broad and burdensome and not reasonably calculated to lead to the discovery of relevant, admissible evidence. PPILP produced no documents. Plaintiff states that...

Excerpt: ... 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 presumption is, in the absence of an affirmative showing in that particular, that the county in which the title of the action shows that it is brought is, prima facie, the proper county[.]" (Quick v. Cors...

Excerpt: ...ff's counsel is admonished to file separate oppositions for each motion in all future filings. STANDARD OF LAW "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 orde...

Excerpt: ...the application of res judicata and injunctive relief claim. IT IS ORDERED THAT Plaintiff file and serve an amended complaint that complies with applicable court rules and rules of civil procedure no later than twenty-one (21) days from the date of this Order. As a threshold matter, Plaintiff's counsel improperly served a single opposition to all three motions set to be heard on July 22, 2020. Plaintiff's counsel is admonished to file separate op...

Excerpt: ...produce responsive documents pursuant to that Request for Production of Documents. Plaintiff states that PPILP initially responded to this discovery on April 29, 2019 by objecting to every request on the grounds of lack of jurisdiction over PPILP and asserting that the requests are overly broad and burdensome and not reasonably calculated to lead to the discovery of relevant, admissible evidence. PPILP produced no documents. Plaintiff states that...

Excerpt: ...against Defendant-in-Interpleader Old Depot Public House, Inc. ("Old Depot") and Rebecca Boyles ("Ms. Boyles") (collectively, "Respondents") and Respondents' counsel, H. Paul Bryant. The arbitrator had awarded Spirit Wolf $140,000 in damages. In addition, the arbitrator awarded $105,572.00 in fees and $20,502.57 in costs, as well as additional arbitration fees in the amount of $2,970.00. Finally, the arbitrator granted Spirit Wolf's motion for sa...

Excerpt: ..."ppb") average acrylamide concentration by weight will satisfy the Office of Environmental Health Hazard Assessment's ("OEHHA") No Significant Risk Level ("NSRL") of 0.2 µg/day of acrylamide for cancer and Maximum Allowable Dose Level ("MADL") of 140 µg/day of acrylamide for reproductive toxicity for the products at issue. (See https://oehha.ca.gov/proposition-65/chemicals/acrylamide.) There was no explanation in the Motion or the [Proposed] Co...

Excerpt: ...CP § 1005(b) ["All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing."].) Morgan and his counsel are admonished to comply with filing deadlines in all future filings. STANDARD OF LAW "[T]he court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those ...

Excerpt: ...efendant until June 26, 2020. (Cal. Civ. Proc. Code § 1005(b) ["All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing."].) Thus, Plaintiffs' opposition was untimely and shall not be considered. However, even if the Court considered Plaintiffs' opposition, the Court's ruling would remain the same. STANDARD OF LAW "The court may, upon a motion . . . o...

Excerpt: ...ed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Cal. Civ. Code § 1794.) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover cos...

Excerpt: ...ction for liability for negligence of public employee, Third Cause of Action for dangerous condition of public property, and Fourth Cause of Action for abatement of public nuisance on the grounds that Plaintiffs have not pleaded sufficient facts to state these causes of action pursuant to the Government Code. Defendant also demurs to these causes of action on the grounds that it is immune from liability pursuant to the Government Code. STANDARD O...

Excerpt: ... after it assumed ownership of the subject property during which defendant FPI continued as the property manager and Plaintiffs contention that they are aware of specific facts which could be alleged so as to sustain an exemplary damages claim and inasmuch as this is Defendant Priya Harbert's first Motion to Strike, the motion to strike exemplary damages is GRANTED WITH LEAVE TO AMEND as to defendant Priya Harbert. STANDARD OF LAW "The court may,...

Excerpt: ..."ppb") average acrylamide concentration by weight will satisfy the Office of Environmental Health Hazard Assessment's ("OEHHA") No Significant Risk Level ("NSRL") of 0.2 µg/day of acrylamide for cancer and Maximum Allowable Dose Level ("MADL") of 140 µg/day of acrylamide for reproductive toxicity for the products at issue. (See https://oehha.ca.gov/proposition-65/chemicals/acrylamide.) There was no explanation in the Motion or the [Proposed] Co...

Excerpt: ...of this Order, Omni shall file and serve a declaration setting forth the reasonable attorney's fees and costs it incurred to attend the mandatory settlement conference and prepare this Motion as well as a proposed order awarding sanctions. The amount of the sanctions to be awarded remains within the Court's discretion. As a threshold issue, while Plaintiffs' opposition and Omni's reply brief were both untimely filed, the Court shall consider all ...

Excerpt: ...ent tools available to trial courts, including the inherent authority to stay an action when appropriate . . . can overcome problems of simultaneous litigation if they do occur." (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal. 4th 739, 758.) Plaintiff Jose Carmelo Castillo ("Plaintiff") filed this action on March 4, 2020, asserting claims of breach of contract, as well as a claim for violation of California Insurance Cod...

Excerpt: ...reby, may apply to the court in which the action is pending to expunge the notice." (CCP § 405.30.) "The claimant shall have the burden of proof[.]" (Id.) "[T]he court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim." (CCP § 405.31.) "Real property claim" means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or ...

Excerpt: ...he complaint[;] [or] (ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue ...

Excerpt: ...-General (Set One), Form Interrogatories-Employment (Set One), and Special Interrogatories (Set One) as to Cal FMC, Plaintiffs' Request for Order Awarding Monetary Sanctions Against Cal FMC in the Sum of $810.00, Plaintiffs' Motion to Deem the Truth of Matters Specified in Requests for Admission, Set No. One, Admitted and Conclusively Established as to Cal FMC, and Plaintiffs' Request for Order Awarding Monetary Sanctions Against Cal FMC in the S...

Excerpt: ...ed to respond. IT IS ORDERED THAT Plaintiff's claims against GLP Defendants are STAYED pending completion of arbitration. (CCP § 1281.4.) Plaintiff's claims against the remaining defendants, SW Smyth LLP, Andrew E. Smyth Attorney at Law and S.B.S. Trust Deed Network are not stayed by this Order. 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 ...

Excerpt: ...lternatively, summary adjudication of each of Plaintiff's causes of action and his request for punitive damages. Initially, Defendants' motion suffers from procedural defects regarding how it is presented to the Court. Defendants' motion is based largely on the premise that Plaintiff has "no evidence," (Def.'s Memo., pp. 1:16, 10:9, 12:25, 15:6), "has offered zero evidence," (Def.'s Memo., p. 1:25, see also Def.'s Memo., pp. 13:10, 16:22), "has n...

Excerpt: ...vice address listed on Plaintiff's proof of service is her old address as she moved in September 2019. However, while Defendant stated she provided a forwarding address to the US Postal Service, she did not provide an updated address to Plaintiff or to the Court. The service address used by Plaintiff was the same address provided by Defendant in her Answer filed on September 12, 2018. Pursuant to California Rule of Court 8.32 subsections (a) and ...

Excerpt: ...Secretary of BCOA, a Request for Production of Documents seeking production of invoices referenced in a series of checks issued by Jennings to himself and his immediate family members in 2019 amounting to over $175,000, as well as documents supporting authorization to issue those checks. Jennings did not produce any responsive documents, and instead asserted objections of overbreadth, vagueness, privacy, attorney-client privilege and work product...

Excerpt: ...vice address listed on Plaintiff's proof of service is her old address as she moved in September 2019. However, while Defendant stated she provided a forwarding address to the US Postal Service, she did not provide an updated address to Plaintiff or to the Court. The service address used by Plaintiff was the same address provided by Defendant in her Answer filed on September 12, 2018. Pursuant to California Rule of Court 8.32 subsections (a) and ...

Excerpt: ...ions), to Defendant's Special Interrogatories. The date for Plaintiff'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. 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's fees, of ...

Excerpt: ...er first may need to seek to add Rebecca Boyles to the action, before judgment against her can be appropriately entered, as is inferred by Petitioner's petition. (See Attach. 3a to Petition ["[T]he Arbitration Award also binds a Respondent who has not yet been joined to the present Action: Rebecca Boyles, the owner and (as determined by the Arbitrator) alter ego of Old Depot."].) In the case of a binding contractual arbitration, such as this one,...

Excerpt: ...nts' request for a judgment notwithstanding the verdict, such a request does not appear separately on the Court's law and motion calendar and Defendants' do not appear to have paid a filing fee related to such a motion. Thus, even though the parties have separately briefed a motion for judgment notwithstanding the verdict, the Court does not consider such a motion to be properly before the Court. To the extent the Court is required to rule on the...

Excerpt: ...he amended pleading by a method permitted by the Code of Civil Procedure. Defendants' 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. As written, the FAC fails to state a cause of action upon which relief can be granted against Defendant Landau. (See CCP § 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in pe...

Excerpt: ...§ 428.50(b).) After a trial date has been set, "[a] party shall obtain leave of court to file any cross-complaint . . . . Leave may be granted in the interest of justice at any time during the course of the action." (CCP § 428.50(c); see also CCP §§ 426.50, 428.10.) Here, as demonstrated by the moving papers, the interests of justice support allowing Defendants to file a cross-complaint at this time. The proposed Cross- Complaint seeks to bri...

Excerpt: ...ervice of notice of entry of this Order, or 20 days after the date the Court begins accepting filings of like documents via fax filing or other method, whichever date is later. At the time of this writing, the Court, generally speaking, is accepting some, but not all types of civil filings due to the COVID-19 pandemic. The parties are instructed to look to the Emergency Local Rules for guidance. On December 4, 2019, this Court granted Defendant F...

Excerpt: ...Hospital and Marshall Medical Center. Plaintiff has now moved to quash those subpoenas, arguing Defendants is violating Plaintiff's privacy rights, is seeking to go on a discovery "fishing expedition," and is attempting to misuse after-acquired evidence. The present motion involves subpoenas issued on or around February 20, 2020. (See Exh. K to Dec. J. Rager.) In her Complaint, Plaintiff alleges she was terminated by Defendant from a position as ...

Excerpt: ...ther amended complaint at this time. Defendant, to the extent it has not already answered, is ORDERED to answer the remaining allegations of 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 no...

Excerpt: ...sed in getting Plaintiff's relevant business records, Plaintiff requests that she be provided 60 days from the date of the order to provide any further responses ordered by the court."].) Accordingly, the Court GRANTS Defendants' motion to the following extent: Plaintiff, to the extent she has not already done so, is ORDERED to serve responsive documents to Defendant Quest Diagnostics' Request for Production of Documents to Plaintiff, Set One, No...