Excerpt: ...Ply Gem's motion is not properly before the court because the parties stipulated that discovery disputes would be heard by Bruce Edwards, as discovery referee, first, before seeking relief from the court. Plaintiff cites a Stipulation filed May 15, 2019, appointing Bruce Edward of James as Case Administrator/Discovery Referee ("Referee"). The Stipulation states that the duties and powers of the Referee will be determined by agreement of the parti...

Excerpt: ... of action. A. Legal Standard for Summary Judgment A motion for summary judgment shall be granted if all the papers submitted show 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...

Excerpt: ...nce policies such as the one he wrote for Plaintiff. Plaintiff alleges that Defendant Slaughter knew the property for which she sought insurance was used in her photography business, and also knew, based on training provided by CSAA and his knowledge of CSAA's underwriting rules, guidelines, and forms that he needed to include an additional form to the policy to insure business property for an amount in excess of $2,500. Plaintiff alleges that De...

Excerpt: ...dget representative that Plaintiff owed money to The Hertz Corporation, and that she had bad credit. Plaintiff alleges that several Budget employees discussed her bad credit and debt owed to Hertz Corporation in front of four other customers. Plaintiff alleges that Budget and Avis falsely represent themselves as two different companies. Plaintiff alleges that ABG committed slander, but she did not file suit until August 20, 2018. The statute of l...

Excerpt: ...f is claiming that he was injured during the accident in question. (Complaint ¶10.) Defendant is entitled to an examination under 2032.220(b). Therefore, the court GRANTS the motion to compel Plaintiff's attendance at the Independent Medical Examination with Dr. Oshtory on December 19, 2019. Dr. Oshtory is to produce his report on an expedited basis, specifically within two weeks of the examination in light of the upcoming trial date. VEHICLE IN...

Excerpt: ...d. (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.3d 311...

Excerpt: ...ing or denial of a forum non conveniens motion lies within the court's sound discretion. (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 610-611; Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751-752; C.C.P. § 410.30(a).) In exercising its discretion, however, the court must bear in mind that the moving party bears the burden of proving that California is an inconvenient forum. (Ford Motor Co., supra, 35 Cal.App.4th ...

Excerpt: ...t MERS had no interest in the loan and was not a valid beneficiary and that there were irregularities in the assignments and substitutions of trustees, including the assignment to The Bank of New York Mellon because the individuals who signed the various assignments and substitutions did not have authority to do so. (FAC ¶21, 30, 32-112.) CIVIL CODE § 2934a Defendants demurrers to the first cause of action because it is unclear who it is allege...

Excerpt: ...ntentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) PLEA IN ABATEMENT A defendant may demur to a complaint on the grounds that "another action [is] pending between the same parties on the same ca...

Excerpt: ...efendant 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).) Here, Defendant has presented admissible evidence that Plaintiffs' cause of action for negligence is preempted by Federal Railroad Safety Act regarding the engagement of the emergency braking system and the horn war...

Excerpt: ...4, 2019. The scope of the questions is limited to the deponent's recollection of events relevant to the claims against Alta and Marconi in this case. Mr. Cantley shall provide written responses under oath no later than December 10, 2019. Defendants may then submit 20 follow-up questions each by December 16, 2019, and Mr. Cantley shall provide written responses under oath by December 20, 2019. Plaintiffs seek an order excusing Robert Cantley from ...

Excerpt: ...ggests that the video and screen shots at issue could be used for the purpose of derailing a train running along the non-public train right-of-way depicted in the video. Union Pacific has sufficiently demonstrated that, as to the unredacted documents lodged with the court conditionally under seal on September 26, 2019, and identified more specifically below: (1) there exists an overriding interest that overcomes the right of public access to the ...

Excerpt: ...arguments raised in opposition to the demurrer to the fifth and sixth causes of action. First Cause of Action for Violation of Civil Code 2923.5 and Second Cause of Action for Violation of Civil Code section 2924.17. The demurrer to the first and second causes of action for Violation of Civil Code section 2923.5 and 2924.17 are SUSTAINED WITH LEAVE TO AMEND. While Plaintiff has alleged sufficient facts to show that Defendant did not contact plain...

Excerpt: ...ion for negligent misrepresentation. (Alliance Mortg. Co. v. Rothwell (1995) 10 Cal.4th 1226; Reid v. Moskowitz (1989) 208 Cal.App.3d 29, 32.) The court therefore STRIKES Paragraph 224 from the Second Amended Complaint. For the reasons discussed in the concurrent demurrer, the court finds that Plaintiff has alleged sufficient facts to support a claim for Intentional Misrepresentation and the cause of action is not barred by the applicable statute...

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: ...t judgment is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). The moving papers refer to arm's length negotiations in determining the amount of the civil penalty and references information such as sales records to support argument that the assessed penalties are reasonable. The parties have submitted additional sales information in the form of a declaration from Todd Marcukaitis. While the declaration des...

Excerpt: ...ased. (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. Dist. (1992) 2 Cal.4th 962, 966-67...

Excerpt: ... 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 consider all mat...

Excerpt: ...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. (Id.) "Th...

Excerpt: ...3, 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 the de...

Excerpt: ...ME after it had started without good cause. The court is not convinced that the failure to come to an agreement on the conditions of the examination constitutes a waiver of Defendant's right to move to compel an IME by Dr. Strassberg. The court therefore compels that Plaintiff participate in an IME with Dr. Strassberg, subject to the following conditions discussed below. After reviewing the evidence presented in support of the motion and the decl...

Excerpt: .... 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. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirw...

Excerpt: ...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 reasonable. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362; Dove Audio, Inc....

Excerpt: ...Plaintiff because he complained about the presence of asbestos in cabins at City's Echo Lake camp. Plaintiff alleges that he was a protected whistleblower under the Fair Employment and Housing Act, Labor Code section 1102.5 et seq., and Government Code section 8547.1, et seq. Although Plaintiff alleges that City's conduct violated statutes that protect whistleblowers, and he has included in the First Amended Complaint separate causes of action al...

Excerpt: ...r Defendants Amber Olson, Dori Olson in this action given that neither party resides at the address listed and counsel for Plaintiff had knowledge of this fact, but served the complaint and summons anyway. (See C.C.P. § 415.20(b); C.C.P. § 418.10(a)(1).) Further, the court is concerned by the allegations in the motion that counsel falsely stated under oath regarding his knowledge of the legal residences of Defendants, as well as Defendant Amber...

Excerpt: ... Amended Complaint and Second Amended Complaint filed in the related case, Alameda County Superior Court Case No. RG17875657, the court finds that the allegations and causes of action alleged in the present complaint and the three complaints filed in Case No. RG17875657 involve the same incident, the same facts and the same claim for damages. A final judgment on the merits has been entered in Alameda County Superior Court Case No. RG17875657 was ...

Excerpt: ...er 2015 to October 2018, where he worked as a "Parts Specialist." In this action, Plaintiff and other non-party aggrieved employees seek to recover civil penalties pursuant to Labor Code section 2699(a, (f), and (g). O'Reilly contends that because this action seeks only statutory penalties, it is governed by Section 393(a), which provides that "the county in which the cause, or some part of the cause, arose, is the proper county for the trial of ...

Excerpt: ...fendant 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).) The present lawsuit filed by Plaintiff filed a "Complaint for Refund of Overpayment of Personal Income Taxes" alleging that Plaintiff overpaid his 1993 income taxes. (Complaint at ¶¶ 3-5.) Here, Defendant has prese...

Excerpt: ...uty to provide the premises in a clean, healthful, and safe condition and Defendant Raymond owed a duty to manage the premises in a reasonable manner. Plaintiffs allege that Defendants breached the duty of care by allowing Defendant Lyna Huynh to operate her nail salon and Defendant Jorge Ramirez to operate his dry cleaning business in a manner that caused exposure to toxic chemicals. Plaintiffs alleges that Defendants knowingly failed to properl...

Excerpt: ...der PAGA; they may only bring the action on behalf of themselves and all other aggrieved employees to vindicate the LWDA's interest in enforcement of the Labor Code. (Labor Code § 2699(c) & (g)(1); Williams v. Superior Court (2015) 237 Cal.App.4th 642, 649.) Any monetary penalties assessed against the defendant are split between the LWDA and named plaintiffs, with 75% going to the LWDA. (Labor Code § 2699(i).) Even outside of the settlement con...

Excerpt: ... 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 the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defe...

Excerpt: ...ttorney letter exonerated Plaintiff Portofino is not particularly material to any of Plaintiffs' claims, but the court, in its discretion, sees no need to strike it. The motion to strike the allegations at p. 19, lines 14-16, that each defendant ratified the despicable conduct of the other defendant and each defendant was the managing agent of each other defendant is GRANTED WITH LEAVE TO AMEND. These allegations are conclusions intended to suppo...

Excerpt: ...e in support of their "renewed" motion the form of a supplemental declaration of Gina Sims, which they allege clarifies the ambiguity that court relied upon when denying the prior motion to compel. Plaintiff is required to present evidence that reconsideration should be granted due to the existence of new or different facts, circumstances or law. See CCP § 1008(a). A motion for reconsideration under C.C.P. § 1008(a) requires the moving party, a...

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: ... or, if none, by the decedent's successor in interest." (C.C.P. § 377.31.) Max Carlson, decedent's guardian ad litem and son has filed a declaration attesting that Plaintiff Christa Carlson ("decedent"), who brought this action, died on June 13, 2019, and that Max Carlson is the successor in interest. The declaration complies with C.C.P. § 377.32 and includes a certified copy of the decedent's death certificate, which the court has examined. Ac...

Excerpt: ... 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 consider all material facts ple...

Excerpt: ...xt on the first page of the declaration containing the first 2 paragraphs of the declaration appears to be missing from the declaration. Second, Defendant has failed to protect the Plaintiff's personal identification information under California Rule of Court, Rule 1.201(a)(1). The Plaintiffs' social security numbers appear in multiple locations in the exhibits to the declaration. Defendant is to redact all references to Plaintiffs' social securi...

Excerpt: ...on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) "Ultimately, disqualification m...

Excerpt: ...d to a prevailing party must be incurred by that party, must be "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation," and must be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3); Charton v. Harkey (2016) 247 Cal.App.4th 730, 743.) Further, the language of the Civil Code section 1794 provides for recovery of both "costs" and "expenses" for claims under the Song-B...