Excerpt: ...ss representatives, a net PAGA payment of $2,250, and settlement administration costs of up to $5,000. After these expenses, the class would get $87,250. The average payout per class members would be $883. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analysis as required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116. A very imp...

Excerpt: ...ourt repeats the analysis in the parallel case even though it is not directly pertinent to this case OVERVIEW The motion of defendants to strike the complaints and the motion of plaintiff to compel further responses to discovery are both part of the larger picture of how a case moves from a plaintiff's pre-filing investigation to a P65 notice to the Attorney General and the alleged violator, to the filing of an adequate complaint, to discovery, t...

Excerpt: ...prevails) to an appropriate injunction. The motion to strike is based on the pre‐filing notice. It presents questions about whether the notice put the alleged violator on notice so that they could remedy the situation without a lawsuit and to the Attorney General so that it could determine whether to initiate its own investigation and possible lawsuit. The court finds the notice to be adequate. The motion to compel further discovery is based on...

Excerpt: ...prevails) to an appropriate injunction. The motion to strike is based on the pre‐filing notice. It presents questions about whether the notice put the alleged violator on notice so that they could remedy the situation without a lawsuit and to the Attorney General so that it could determine whether to initiate its own investigation and possible lawsuit. The court finds the notice to be adequate. The motion to compel further discovery is based on...

Excerpt: ...2AC, para 27(d).) Clients can request specific musicians. (2AC, para 27(n).) When IML or IAL has a client it then invites musicians, who can sign up for the event and play at the event. (2AC, para 27(g).) The musician is paid a share of the proceeds of the performance. (2AC, para 27(g).) The client pays IML or IAL, and IML or IAL then pays the musicians. (2AC, para 27(j).) IML and IAL issue Form 1099s to musicians and do not issue W‐2s. (2AC, p...

Excerpt: ...f a putative class. Plaintiff is prosecuting this case as agent or proxy of the LWDA under the PAGA. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also Collie v. Icee Company (2020) 52 Cal.App.5th 477, 481.) These include causes of action 4 (LC 2751), 5 (accounting), 7 (LC 221), 8 (LC 223), and 11 (LC 202). The LWDA's claims are for Labor Code violations. The LWDA is not asserting claims for breach of the "FY19 Incen...

Excerpt: ...CCP 5150.) PROCEDURAL MATTERS These are demurrers, so 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." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) California law is that complaints must be in language that is "ordinary and concise" (CCP 425.10) and "allegations must be liberally const...

Excerpt: ...s. (Order of 10/6/19.) The case preliminarily settled for monetary relief of a total of approximately $700,000. The settlement agreement states there will be attorneys' fees and cost of up to $210,000 (30%) and a service award of $10,000 for each class representative. The case preliminarily settled for non-monetary relief of agreement to cooperate in the discovery for the claims against Midland. The proposed class notice form and procedure are ad...

Excerpt: ...uments regarding dates Plaintiff took Ms. Mai to appointments and other specific information regarding Ms. Mai's medical diagnosis. Defendant has objected to the requests on the grounds that it violates Ms. Mai's right to privacy. The court agrees. The Court must "place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailin...

Excerpt: ...� Prelim. L-1.) Plaintiffs' First Amended Complaint alleges causes of action for general negligence, premises liability, negligent infliction of emotional distress, and negligence per se against Defendant. (Plaintiff's First Amended Complaint.) Mr. Ramirez, a licensed electrical contractor, was hired by Freeway Insurance Services to remove the electric "Freeway Insurance" sign after it had terminated its lease and began to vacate the leased premi...

Excerpt: ...f a putative class. Plaintiff is prosecuting this case as agent or proxy of the LWDA under the PAGA. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also Collie v. Icee Company (2020) 52 Cal.App.5th 477, 481.) These include causes of action 4 (LC 2751), 5 (accounting), 7 (LC 221), 8 (LC 223), and 11 (LC 202). The LWDA's claims are for Labor Code violations. The LWDA is not asserting claims for breach of the "FY19 Incen...

Excerpt: ...that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden s...

Excerpt: ...ture and type shown by the evidence," or "[t]he financial condition of the defendant." (Cal. Civ. Code §§ 3295(a), (c).) "Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, t...

Excerpt: ...trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination." Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842. In Ruiz, the court found that the defendant seeking to compel arbitration had not adequately established that the plaintiff had electronically signed the arbitration agreement. (Id.) Here, the m...

Excerpt: ...ary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178. Even where a motion to seal is not opposed, the Court has an obligation to review the motion and seal only those documents that meet the requirements of C.R.C. 2.550(d). Under C.R.C. 2.550(d), the Court may order that a court record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to ...

Excerpt: ...ideration of the declaration of Dawn Ceizler, the court finds that Defendant made multiple good faith attempts to meet and confer with Plaintiff, but was unable to due to the lack of a direct phone number to reach him. If Plaintiff has a direct phone number or an email address, Plaintiff should provide the contact information to counsel and update his contact information in his pleadings. PLAINTIFF'S COMPLAINT Plaintiff alleges eighteen causes of...

Excerpt: ...o expunge a lis pendens may be filed at any time after the notice is recorded. (CCP § 405.30.) The Court must order a lis pendens expunged if it finds either (1) that the claimant does not have a real property claim (CCP §§ 405.4, 405.31) or (2) that the claimant has not "established by a preponderance of the evidence the probable validity of the real property claim." (CCP § 405.32.) A real property claim is any cause of action that, if merit...

Excerpt: ...d Stone's prior request for attorney's fees is misplaced. Plaintiff fails to discuss the key difference between the present noticed motion, specifically that Defendants Demo and Stone's prior request for attorney's fees was brought by way of memorandum of costs. The court's prior order for the request for attorney's fees was in response to a motion to tax costs, associated with a memorandum of costs, which fell under Carpenter v. Jack in the Box ...

Excerpt: ...Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) ...

Excerpt: ...st the Defendants 1) Invasion of Privacy, 2) Violation of Penal Code 632, 637.2, 3) Negligence, 4) Violation of Oakland Tenant Protection Ordinance, 5) Breach of covenant of quiet enjoyment; 6) IIED, 7) NIED, 8) Violation of Civil Code 1965, 9) Violation of statutory duties and 10) Trespass. Defendants seeks summary judgment, or in the alternative, summary adjudication of "several of the causes of action alleged against it pursuant to Code of Civ...

Excerpt: ...t (1998) 67 Cal.App.4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as ...

Excerpt: ...) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in the...

Excerpt: ...tion on the ground that it was filed well after the initial 60-days after the initial cross-complaint was served. Cross-Complainant argues that the First Amended Cross-Complaint filed on April 22, 2021, did not contain new causes of action and is sufficiently similar to the original cross-complaint filed on Mary 21, 2018 so that the court should consider the anti-SLAPP motion as untimely. The court agrees. Typically, an anti-SLAPP motion must be ...

Excerpt: ...) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in the...

Excerpt: ...t (1998) 67 Cal.App.4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as ...

Excerpt: ...tion on the ground that it was filed well after the initial 60-days after the initial cross-complaint was served. Cross-Complainant argues that the First Amended Cross-Complaint filed on April 22, 2021, did not contain new causes of action and is sufficiently similar to the original cross-complaint filed on Mary 21, 2018 so that the court should consider the anti-SLAPP motion as untimely. The court agrees. Typically, an anti-SLAPP motion must be ...

Excerpt: ... cleared. Mr. Beltran, offered to have Santiago Hernandez assist with trimming trees because had experience trimming trees and tools, and Mr. Tuomey agreed. (AR:0131-0132.) On May 21, 2016, Santiago Hernandez was seriously injured while working to remove the trees. (Administrative Record Pages ("AR"): 118:7-119:14; 131:21-132:4.) Mr. Hernandez was not licensed by the California Contractors State Licensing Board as a tree trimmer and Mr. Tuomey wa...

Excerpt: ... Plaintiff-in- Intervention Chubb filed a notice of lien related to is worker's compensation policy for amounts paid related to the same accident. On March 17, 2020, Defendants settled their claims with Plaintiff Hammond, which included a negligence cause of action. Defendants now demurrer to the First Amended Complaint-in-Invention on the grounds that since the negligence cause of action has been dismissed from the Complaint-in-Intervention, tha...

Excerpt: ...HOUT LEAVE TO AMEND. Petitioner challenges the City of Oakland's issuance of Certificates of Compliance for Alameda County Assessor Parcel Nos. 019-0102-004-00, 024-0697-007-15, 025- 0701-011-00 and 025-0707-014-02 ("Subject Parcels"). The Certificates were issued during the time that the parcels were the property of the Chapter 11 Bankruptcy Estate. Petitioner alleges in the petition that he is a resident of the County of Alameda and "was also a...

Excerpt: ... defendants' moving papers are true and correct copies of the documents executed between the parties. The court therefore grants judicial notice of the documents and considers the merits of arguments presented. The operative First Amended Complaint filed in the present case asserts five causes of action: 1) Declaratory Relief- Shareholders Agreement; 2) Breach of Contract- Employment Agreement; 3) Breach of Contract- legal Fees Obligation for Mar...

Excerpt: ... to Plaintiff. (Declaration of Peter Rehon at ¶ 6, Exhibit 1.) Defendant was to provide further verified responses no later than November 10, 2020. The court also previously granted Plaintiff's request for issue, evidentiary and monetary sanctions on March 3, 2021 and awarded monetary sanctions in the amount of $13,372.50 and to pay $1,500 in sanctions to the court. (Declaration of Peter Rehon at ¶¶ 3-17.) Plaintiff represents that no such res...

Excerpt: ...HOUT LEAVE TO AMEND. Petitioner challenges the City of Oakland's issuance of Certificates of Compliance for Alameda County Assessor Parcel Nos. 019-0102-004-00, 024-0697-007-15, 025- 0701-011-00 and 025-0707-014-02 ("Subject Parcels"). The Certificates were issued during the time that the parcels were the property of the Chapter 11 Bankruptcy Estate. Petitioner alleges in the petition that he is a resident of the County of Alameda and "was also a...

Excerpt: .... RG19041496. The Court finds that the cases are properly coordinated and consolidated. The cases are not complex; they both involve the same automobile accident and do not fall into any of the categories for complex litigation as defined by C.R.C., Rule 3.400. The cases involve a common question of fact as to how damages should be allocated to the respective defendants and there is a significant risk of conflicting rulings. Further, factors of c...

Excerpt: ...mmit Surgery Center, Pontine Inc,, ProMed Spine, Kaiser Hospital of Union City, Kaiser Radiology-Union City, Kaiser Central Support Services, Requests Nos. 1-7 are limited to any conditions related to the neck, back, shoulders, headaches/migraines, emotional distress, anxiety and/or physical fatigue from September 26, 2013 to the present. The court further ORDERS that the deposition subpoena for production directed to Custodian of Records for Gei...

Excerpt: ...nvestigation. A three-person faculty subcommittee of the UC Berkeley Privilege and Tenure Committee) ("PTC") conducted a three-day hearing, the committee recommended that Plaintiff should be suspended without pay for one year, a letter of censure, and sensitivity training. UC Berkeley Chancellor Christ on 8/13/18 determined that the recommendation was not appropriate and imposed a three-year suspension without pay. Plaintiff resigned effective 7/...

Excerpt: ...f Contract, is OVERRULED as to Saybrook, and SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a cause to defendant TCS. As discussed in the three earlier demurrers to the Complaint and First Amended Complaint, Plaintiff's First Cause of Action for Breach of Contract alleges breach of his written Faculty Appointment Contract, which had a one-year term that expired on May 31, 2019. Employment under the Contract was at will. Language in para. 5...

Excerpt: ...murrer to the eighth cause of action. LEGAL STANDARD A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code C...

Excerpt: ...e potential liability for the claims alleged. Additionally, the court is concerned about the low settlement amount given the large number of aggrieved employees, 5,592, which would result in very small amounts that would ultimately be distributed to the individual aggrieved employees. The court is not convinced that the settlement is "fair, adequate and reasonable." (See, e.g., Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 244-45.) P...

Excerpt: ...ated in prior meet and confers that Plaintiff will not oppose the motion to strike. Therefore, the court GRANTS the motion to strike and STRIKES the Second (erroneously labeled "Third") Cause of Action, in the First Amended Complaint, in its entirety, Pages 4:13-5:17 as to Defendant Kritika Sehgal. PUNITIVE DAMAGES Plaintiff seeks to strike the third cause of action for Punitive Damages, as well as the prayer for "Punitive Damages/Exemplary Damag...

Excerpt: ...the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5.) The court's review is whether there is substantial evidence in the record to support the factual findings. "Substantial evidence" is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. ... Such evidence must be reasonable, credible, and of solid value." (California Youth A...

Excerpt: ...e court finds that although Plaintiff sought an IDC first in December 21, 2021, due to limited scheduling for informal discovery conferences, the IDC was not able to be scheduled until April 9, 2021 and during that time, the time period to file was tolled since Plaintiff was unable to obtain a reservation number to file the motion until after the IDC occurred. The court therefore considers the motion on its merits. Plaintiffs' request to compel f...

Excerpt: ...r summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if, and only if, the eviden...

Excerpt: ...t there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shif...

Excerpt: ...the motion and has indicated in prior meet and confers that Plaintiff will not oppose the motion to strike. Therefore, the court GRANTS the motion to strike and STRIKES the Second (erroneously labeled "Third") Cause of Action, in the First Amended Complaint, in its entirety, Pages 4:13-5:17. PUNITIVE DAMAGES Plaintiff seeks to strike the third cause of action for Punitive Damages, as well as the prayer for "Punitive Damages/Exemplary Damages." In...

Excerpt: ...id up front and approximately 21,000,000 to potentially be paid in April 2021, if the Rhodes exercised their "put payment" rights under the agreement, which would purchase Plaintiffs' remaining 25% interest in the company). As part of the sale, Rhodes negotiated and signed a Stock Purchase Agreement ("SPA"), which contained a mandatory forum selection clause requiring that all disputes be litigated in Cook County, Illinois. The language of the fo...

Excerpt: ... settlement is within the "reasonable range" of the settling defendant's proportional share of comparative liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) Courts consider (1) "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability"; (2) "the amount paid in settlement"; (3) "the allocation of settlement proceeds among plaintiffs"; and (4) "a ...

Excerpt: ...g competent testimony. The court will not require that the PMQ review over two thousand loan files from the trust at issue in order to be found to serve as PMQ for the topics at issue below. Request No. 2: Terms and conditions for loan modifications within the TRUST, both permanent and temporary: The request for further testimony is DENIED. Plaintiff has already obtained relevant testimony and the period between 2007 and 2012 is not at issue in t...

Excerpt: ...ns and entered default against Harish Ram, the court cannot enter judgment until the court has found that there is underlying wrongdoing has been established. (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, §§151- 152, pp. 281-286; Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581; Richard B. LeVone v. Higashi [Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who do not commit th...

Excerpt: ...as to Defendant Wells Fargo Bank, N.A. only. Legal Standard for Demurrer A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between t...

Excerpt: ...All Saintsidence") opposes the present motion on several grounds, which the court will address below. JURISDICTION First, All Saintsidence challenges this court's jurisdiction to hear the present motion based on All Saintsidence's Notice of Appeal of the court's denial of its Petition to Compel Arbitration. While the filing of an appeal divests the trial court's jurisdiction, however, the stay only applies to the issues and parties embraced by th...

Excerpt: ... or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5.) The court considers due process issues using the court's independent judgment. (Doe v Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073; Tafti v. County of Tulare (2011) 198 Cal.app.4th 891, 896.) The Regents must follow its own procedures and those procedures must provide a level of due process ap...

Excerpt: ...ily Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may cons...

Excerpt: ...t does not specify, with sufficient particularity, whether the contract is written or oral and the terms of the agreement. The allegations constituting a defendant's breach of a contractual duty "must be pleaded with specificity." (Baldwin v. AAA N. Cal., Nev. & Utah Ins. Exch. (2016) 1 Cal.App.5th 545, 550; Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4th 1, 5.) The court agrees that Biotree HealthCare Partners Limited, Biotree Harm...

Excerpt: ... conclusory grounds for striking the sections of the complaint. Second, as to the request to strike the prayer for punitive damages and injunctive relief the court finds that the allegations in the complaint support a claim for punitive damages given the allegations that Defendant's practice is to confuse tenants and circumvent tenant protections by sending an "explanation letter" that does not comply with Civil Code section 1950.5 and improperly...

Excerpt: ...A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if, an...

Excerpt: ..., subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3...

Excerpt: ... to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil Procedure ["CCP"] § 437c(c).) When a cross-complainant moves for summary adjudication, it is the cro...

Excerpt: ...nd that the court lacks jurisdiction because Plaintiff has failed to timely comply with the Government Claims Act. First, Defendant argues that Plaintiff has not alleged compliance, exhaustion of remedies under the grievance process set forth in the collective bargaining agreements between OUSD and the two applicable unions, United Administrators of Oakland Schools ("UAOS") and the Oakland School Employees Association/Service Employees Internatio...

Excerpt: ... (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact...

Excerpt: ...history and background of the case given the many demurrers and motions brought before the court. The length of the motion renders the motion unmanageable and the court is required to spend significant time trying to decern the necessary information from the superfluous. "There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power ...

Excerpt: ...urden of proving by a preponderance of the evidence any fact necessary to its defense. [Citations] The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination." Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842. While Defendant presents evidence that Plaintiff agreed to Defendan...

Excerpt: ... 362, 42.) "To this end, the provision 'is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.'" (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22, citing Wilkerson v. Sullivan, supra, 99 Cal.App.4th 443, 446.) Section 425.16 is interpreted to allow awards of only such fees as the court deems...

Excerpt: ...e demurrer to the Second Cause of Action for unjust enrichment is SUSTAINED WITH LEAVE TO AMEND. Legal Standard for Demurrer A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally con...

Excerpt: ...ivil Procedure (C.C.P.) section 425.16 involves two steps. In the first step, the defendant has the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "If the defendant makes the required showing, the burden...

Excerpt: ... v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court m...

Excerpt: ...review of the Second Amended Complaint, that Plaintiff has adequately pleaded facts that demonstrate that the School District took affirmative actions, such as providing places for the abuse to occur, for covering up the abuse and for allowing the teacher to resign instead of being fired. (Second Amended Complaint at ¶¶ 24, 25, 31, 34, 36, 37, 92, 100, 101, 107, 108, 117, 118 121, 126, 127.) The court finds that these allegations are sufficient...

Excerpt: ...4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by...

Excerpt: ...tion of John Vodnick at Exhibit 1.) Further, if the computer at issue is the property of Saybrook and not TCS Education System and Plaintiff is aware of this fact, then the appropriate party to serve the request to is Saybrook. Additionally, as defendant Nathan Long, although the opposition discusses his response, both the notice of the motion and discovery requests are not directed to defendant Nathan Long, therefore the court does not rule on a...

Excerpt: ...68 (POC Response Re February 17, 2021 Wong Deposition), 181 (MHC Response re February 10, 2021, Taetz Deposition) and Request No. 181 (MHC Response re February 10, 2021, Taetz Deposition), and Request No. 199 (MHC Response re February 17, 2021 Wong Deposition), as follows: 1. As to Requests Nos. 163, 168, 181, and 198, Defendants' are to produce texts, emails or other form of electronic communication sent to either Mr. Wong or Ms. Taetz during th...

Excerpt: ...a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. ...

Excerpt: ...rom (1) the sexual assault witnesses, and (2) the Fremont Administrator (sic). (Plaintiffs' MPA in Opposition to Defendants Motion for Protective Order, at 2:2-7.) Based on this understanding, the court rules as follows: 1. Defendant's Motion for Protective Order is DENIED as to all witnesses to the alleged sexual assaults and all witnesses who reported incidents of sexual assault to the Parkview staff. The court begins its analysis by noting tha...

Excerpt: ...ny a petition to compel arbitration on the ground of waiver, waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof." Saint Agnes Medical Center v. PacifiCare of California (2003) 8 Cal.Rptr.3d 517, 31 Cal.4th 1187, 82 P.3d 727, citing Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 782. The present action was filed on July 20, 2020. Defendant filed its answer to the complaint on O...

Excerpt: ...moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if, and only if, t...

Excerpt: ...rom (1) the sexual assault witnesses, and (2) the Fremont Administrator (sic). (Plaintiffs' MPA in Opposition to Defendants Motion for Protective Order, at 2:2-7.) Based on this understanding, the court rules as follows: 1. Defendant's Motion for Protective Order is DENIED as to all witnesses to the alleged sexual assaults and all witnesses who reported incidents of sexual assault to the Parkview staff. The court begins its analysis by noting tha...

Excerpt: ... v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court m...

Excerpt: ...ue to the late delivery of portions of premises has already been ruled on by the Court in its order overruling 2050 Williams Street's demurrer to the First Amended Complaint, which addressed the interpretation of section 8.7 and 8.8 of the lease agreement addressing insurance and indemnity obligations. Cross-Defendant argues that section 8.7 and 8.8 do not apply to the present lawsuit because that portion of the lease only relates to damages and ...

Excerpt: ...bson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625; CRC 317(d).) In a demand for production of documents, "the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) [a] statement of compliance with the demand is incomplete[;] (2) [a] representation of inability to comply is inadequate, incomplete, or evasive[;] [and/or] (3) [a]n objection in the response...

Excerpt: ...ments that make the title void or voidable and that are not deducible from the record, such as a grantor's incapacity to contract, fraud in procuring a transfer, forgery, or lack of delivery. (12 Witkin, Summary of California Law, section 338 p.390 (11th Ed. 2017.) In order to claim the benefit of the recording laws, the claimant must be a bona fide purchaser or mortgagee, or a judgment creditor without notice, and the burden of proving bona fide...

Excerpt: ...nt dispute lies within the scope of the agreement to arbitrate. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.) Plaintiff Henkes acknowledges that he entered into the 2/12/17 Employee Transfer Agreement. (Henkes Dec., par 2.) The agreement he entered into with Tesla has an arbitration clause. The arbitration clause covers "any and all disputes, claims, or causes of action, in law or equity, arising from or relating to [Henkes's] emp...

Excerpt: ...shed preliminary injunction standard for pre- judgment relief. On a motion for preliminary injunction the court evaluates the two interrelated factors of (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm the plaintiff may suffer if the injunction is denied as compared to the harm that the defendant may suffer if the injunction is granted. (Right Site Coalition v. Los Angeles Unified School Dist. (2...

Excerpt: ...bson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625; CRC 317(d).) In a demand for production of documents, "the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) [a] statement of compliance with the demand is incomplete[;] (2) [a] representation of inability to comply is inadequate, incomplete, or evasive[;] [and/or] (3) [a]n objection in the response...

Excerpt: ...4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by...

Excerpt: ... v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court m...

Excerpt: ...nzino v. Washington Outpatient Surgery Center, LLC (RG20067286) is decided. The Court also has discretion to stay a case in its entirety in the interest of justice. (CCP §§ 128(a), 187; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758 ["The case management tools available to trial courts [includes] the inherent authority to stay an action when appropriate"]; Bailey v. Fosca Oil Co., (1963) 216 Cal.App.2d 813,...

Excerpt: ... 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 terms or conditions as the court shall declare, including protective orders." (CCP § 1987.1(a).) "In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the righ...

Excerpt: ...erned about the untimeliness of the papers filed in opposition to the motion, the Court exercises its discretion to consider the late-filed papers. (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625).) 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 terms or conditions as the court shall declare, includi...

Excerpt: ...d Demo's request for attorney's fees, not on the grounds that the fees incurred were unreasonable, but that Defendants were not entitled to fees related to Plaintiff's appeal of the anti- SLAPP motion. First, Plaintiff appears to argue that because the Court of Appeal did not specifically mention in their order that Defendants were entitled to fees and therefore the recovery of fees are precluded. Based on the case law, this is not an accurate re...

Excerpt: ...ndant Loh. The declarations provided Peter Catalanotti and Michael Shepherd and Jessica M. Takano show hours billed at a "reasonable rate" but do not reflect the amounts actually billed to the client/insurer. PREVAILING PARTY In an action to enforce a contract authorizing an award of fees and costs to one party, the party "prevailing on the contract" is entitled to reasonable fees. (Civ. Code § 1717.) Here, the language of the lease agreement th...

Excerpt: ...ows: The motion is DENIED. Legal Standard for Summary Adjudication "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, o...

Excerpt: ...he sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, r...

Excerpt: ...�§473.5, 473(b), (d).) Accordingly, the entry of default entered on June 19, 2020 against Defendants Biotree HealthCare Partners Limited, Biotree Harmony Limited, Hao Zhou is hereby SET ASIDE. Defendants shall file their proposed answer and cross-complaint in the form attached as Exhibit 1 to the Declaration of Bing Zang Ryan in support of Defendants' Reply. The answer and cross-complaint shall be filed by February 19, 2021 and served forthwith....

Excerpt: ...ed an extremely lengthy separate statement identifying 80 undisputed material facts in support of its motion for summary adjudication for two causes of action. After reviewing the "material facts" the court finds that the majority of the material facts are not in fact "material facts" but rather facts that are irrelevant. Given the number of facts, the court is unable to easily determine the material facts, as is the purpose of the separate state...

Excerpt: ...d to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of ...

Excerpt: ...tion upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dis...

Excerpt: ... the Adult Protective Services is part. The court did not receive an opposition on behalf of the Long Term Care Ombudsman of the County of Alameda but the interests and law appear to be applicable to both entities. Given that the motion was brought as one motion as to both subpoenas, the court will consider the two subpoenas together. Second, Welfare & Institutions Code section 9275 deems the investigation materials as confidential. (Ombudsman Se...

Excerpt: ... at the rate charged by the parties. Additionally, Defendant, specifically counsel Peter Catalanotti and Michael Shepherd, are to provide a declaration providing a summary of the fees that are attributable only to Defendant Loh (as opposed to split or apportioned fully to Loh even though work was performed on behalf of both Wellington Properties and Loh, such as for depositions or court appearances) at the various hourly rates at the different fi...

Excerpt: ...es related to Plaintiff's appeal of the anti- SLAPP motion. First, Plaintiff appears to argue that because the Court of Appeal did not specifically mention in their order that Defendants were entitled to fees and therefore the recovery of fees are precluded. Based on the case law, this is not an accurate reading of the law. (C.C.P. § 425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [ "[A]ny SLAPP defendant who brings a successful motion ...

Excerpt: ... of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (CCP § 36(e).) MOTION FOR PREFERENCE Plaintiff...

Excerpt: ... to substitute Loranie Francis, a personal representative for the Estate of Mary Virgis Thomason given the death of Ms. Thomason. (See Lazar v Estate of Lazar (1962) 208 Cal.App.2d 554, 561.) The court on its own motion take judicial notice of the orders and determination of Ms. Francis as the executor and personal representative for Mary Virgis Thomason in probate action: The Estate of Mary Virgis Thomason, Alameda County Superior Court Case No....

Excerpt: ...o Code of Civil Procedure (C.C.P.) section 425.16 involves two steps. In the first step, the defendant has the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "If the defendant makes the required showing,...