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