Excerpt: ... of action under the California Private Attorney General Act ("PAGA") alleging violations of the Labor Code. Defendant demurrers to Plaintiff's complaint on the grounds that there is another action pending, a class action in the Central District of California, United State District Court: Richard Trujillo v. The Chef's Warehouse West Coast, et al. ("Trujillo"). Code of Civ Procedure section 430.10(c), arguing that the claims in Trujillo are the s...

Excerpt: ...ay be appealed via writ and in this case the writ was summarily denied. However, regardless of the denial of the writ, the court does not view its order as a final judgment that it is able to enforced against Cross-Defendant Ply-Gem at this time. First, the authority relied upon primarily by Cross-Complainant, Montrose Chemical Corp. of California v. American Motorists Ins. Co. (Cal. Ct. App. 1993) 16 Cal.Rptr.2d 516 (review granted and opinion s...

Excerpt: ...y 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 ma...

Excerpt: ...er 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.) ...

Excerpt: ... and SUSTAINED WITH LEAVE TO AMEND as uncertain and for failure to state a cause of action as to defendant TCS. As discussed in the two 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 of the Contrac...

Excerpt: ... Quinones, to the ground. (Administrative Record Pages ("AR"): 104:25-105:24; 116:8-15, 124, 125, 128, 137, 423, 425-42.) PROCEDURE The Division of Occupational Safety and Health conducted an injury accident investigation and on March 30, 2017 cited Acco Engineered Systems ("Acco") for violations of the occupational health and safety regulations, specifically Title 8 section 3704, which provides that "[a]ll loads shall be secured against dangerou...

Excerpt: ...ot affected by the judgment or order."(C.C.P. § 916, subd. (a).) "In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. '[W]hether a matter is 'embraced' in or 'affected' by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have...

Excerpt: ...nted 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 complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defe...

Excerpt: ...ty 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 shifts to plaintiff to show the existence of a triable issue of fact regarding ...

Excerpt: ...ation is resolved. (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, [during arbitration "the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration"].) "In the absence of a stay, the continuation of the proceedings in the trial court disrupts the arbitration proceedings and can render them ineffective." (Federal Ins. Co. v. Superior...

Excerpt: ...." (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (CCP §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies...

Excerpt: ...7.) Here, the language of the lease agreement that is at issue defines "prevailing party" to include "a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment or the abandonment by the other Party or Broker of its claim or defense." (Second Amended Complaint, Exhibit A, Paragraph 31, attached to the Declaration of Peter C. Catalanotti at Exhibit A in support of the M...

Excerpt: ... this preference." (C.C.P. § 36 subs. (e). Plaintiffs base their request on the declaration of counsel and the declaration of Plaintiff Cheryl Brown Obolsky and request preference because the trustee, Louis Greer, of the Louis Greer Trust, recently passed away and Plaintiffs are concerned that the trust has little to no assets and if the case were not to proceed to trial right away, then Plaintiffs would be left with an insolvent Defendant to co...

Excerpt: ...255.) 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 defend...

Excerpt: ...ates 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, and treats the demurrer as admitting all material fac...

Excerpt: ...e 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." (Code Civ. Proc. § 1281.2.) AGREEMENT TO ARBITRATE Plaintiff disputes that there was an agreement to arbitrate. Plaintiff maintains that Plaintiff herself did not consent to arbitration since the arbitration agreement was signed by Karen Cordeiro and not Plaintiff. ...

Excerpt: ...nsive pleading. While Defendants cite in their memorandum of points and authorities In re Marriage of Smith (1982) 135 Cal.App.3d 543, 545 for the proposition that their appearance in the present motion does not constitute a general appearance, their reliance on that authority is misplaced, as the case involved a situation where Defendant filed both a motion to quash, and a motion to set aside default. Had Defendants filed a motion to quash in co...

Excerpt: ...andard 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 the parties." (Code Civ. Proc. § 452.) The court give...

Excerpt: ...nal jurisdiction over Defendant is constitutional. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449, overruled on other grounds by Bristol- Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773, 1781.) Once established, the burden shifts to Defendants to prove that the exercise of jurisdiction would be unreasonable. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 792-794.) The U.S. Supreme Court re...

Excerpt: ...n arise from locating a promissory note that is alleged to be related to construction at the property at issue and involve the same general nucleus of facts as the complaint and other consolidated complaints/cross- complaints. The trial court has broad discretion to allow amendments to the pleadings "in furtherance of justice." (C.C.P. § 473(a)(1).) "This discretion should be exercised liberally in favor of amendments, for judicial policy favors...

Excerpt: ...uested relief. (See C.C.P. § 664.6.) More specifically, Plaintiff demonstrated that the parties executed a written "Settlement Agreement" which provides for the court to retain jurisdiction under Code of Civil Procedure section 664.6 and requires that Defendant to execute three quit claim deeds for real property as part of the settlement. (See the Declaration of Wayne R. Russo at ¶ 3, "Settlement Agreement" attached at Exh. A.) Additionally, th...

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: ...ioner California Newspaper Partnership, dba The Bay Area News Group and The East Bay Times ("Petitioner") brings the present petition requesting under the California Public Records Act to obtain the names of long-term care facilities, including skilled nursing homes, assisted living facilities, residential care facilities, and other congregant care facilities in Alameda County with COVID-19 cases, and the cumulative number of infections and death...

Excerpt: ...dating back to 2006 when Plaintiff applied for and obtained the initial mortgage for the subject property. First, the court notes that Defendant Wells Fargo ("Defendant") is not requesting Plaintiff's tax returns. Therefore, no documents should be produced that reflect Plaintiff's tax returns or are integral to the tax returns. Additionally, Defendant Wells Fargo represents that Wells Fargo ceased in its attempts to subpoena Franklin Capital Grou...

Excerpt: ...at AHMC produced an incomplete document production and made improper claims that certain documents were subject to a protective order. Plaintiffs also contend that AHMC served 60 pages of objections to the Deposition Notice that limited the scope of AHMC's investigation, education and resulting production. Plaintiffs contend that AHMC's designee, James Jongkind ("Mr. Jongkind"), made no investigation, did not look for documents, and wasn't educat...