Excerpt: ...ate 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 Defendant disputes that there was an agreement to arbitrate. Defendant maintains that Plaintiff did not consent to arbitration when the retention agreement was signed and that therefore, there is no agreement to a...

Excerpt: ...d Amended Complaint shows that Raymond was not 4W's employee. The motion to strike the allegation that each defendant ratified the despicable conduct of each other defendant and each defendant was the managing agent of each other defendant at pp. 19:27-20:2, is DENIED. 4W argues that Plaintiffs have not alleged that Raymond had substantial discretionary authority over significant aspects of 4W's business sufficient to support the conclusion that ...

Excerpt: ...er to Tri's Second Cause of Action for Intentional Infliction of Emotional Distress is SUSTAINED WITHOUT LEAVE TO AMEND. Tri did not have leave to add Portofino as a new defendant to this existing cause of action. (People ex rel. Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785-786.) The demurrer to Portofino's Third Cause of Action for Breach of Contract is SUSTAINED WITHOUT LEAVE TO AMEND. The Third Cause of Action alleges breach...

Excerpt: ...ther trustee's sale, pending resolution of this case or further order of the court. In this action, Plaintiff alleges that he owns real property at 936 Bayview Avenue, Oakland, California. Plaintiff alleges that in 2001, he borrowed money secured by a deed of trust on the property. Plaintiff alleges that Defendant U.S. Bank is the assignee of the deed of trust, and U.S. Bank has hired Fay Servicing to service the loan. Plaintiff alleges that he d...

Excerpt: ...onliffe (1994) 7 Cal.4th 634, 638.) The trial court also may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) A demurrer can be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank, supra, 39 Cal.3d at p...

Excerpt: ...good cause for issuance of the order by a preponderance of evidence. (Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1145.) The court finds that Plaintiffs have not presented good cause in support of their motion by a preponderance of the evidence. Generally, there is no right of public access to discovery materials exchanged between civil litigants (e.g., pretrial depositions and interrogatories). Nor do the sealing rul...

Excerpt: .... Inc. The case was referred to mediation, and notice of a settlement was filed in February 2018 and then withdrawn. Eventually, a settlement was reached and American Honda was dismissed on December 10, 2018. Defendant OAC was added by Doe amendment on November 15, 2018. Defendant OAC never appeared and default was entered. A prove-up hearing was scheduled for April 19, 2019, and continued twice at the request of counsel to June 28, 2019. On June...

Excerpt: ...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 pleaded in...

Excerpt: ...cluding acetone and isopropanol, to permeate the business premises occupied by Portofino. Plaintiffs allege that they notified Huynh of this problem on various occasions in 2017 and 2018, and notified her that Tri was experiencing health problems as a result, but she did not close her door, use an air purifier, use a ventilator, and take any other action to remediate the problem. Plaintiffs allege that they were eventually forced to vacate the pr...

Excerpt: ...ornia is GRANTED, consistent with the Discovery Referee's [Recommended Order]. In this action, the parties entered into a Stipulation filed May 15, 2019, appointing Bruce Edwards of JAMS as Case Administrator/Discovery Referee ("Referee"). Ply Gem objects to the Referee's Recommended Order compelling Ply Gem to allow Plaintiff CP V JLS, LLC ("Plaintiff") to inspect Ply Gem's manufacturing plant in Corona, California. Ply Gem contends that a party...

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...

Excerpt: ...e Order that may be brought or instituted by third persons, such as the claims made by Plaintiff in this action. LEGAL STANDARD 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 ele...

Excerpt: ...agon-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.) Th...

Excerpt: ...is not supported by any documentation, lack foundation with regard to attorney's fees and costs incurred to date. Plaintiff's response to Form Interrogatories cannot be offered against Ply Gem (Code Civ. Proc., sec. 2030.410) so there is no admissible evidence of CP West's damages. In addition, there is no showing that the damages claimed by Plaintiff are identical to the damages incurred by CP West as a result of Ply Gem's conduct. By its nature...

Excerpt: ... 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 conduct ...

Excerpt: ...eging various causes of action against multiple defendants, in Action No. HG18900038, he "carries" those allegations forward in the event that the orders granting the anti-SLAPP motions are reversed and the claims are reinstated. Pursuant to Code of Civil Procedure section 128.7, Signing, filing and advocating a pleading with the court is a certification, inter alia, that (1) the pleading has not been presented primarily for an improper purpose, ...

Excerpt: ...bd. (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, reading it as a whole and its parts in their context and treats the demurrer as admitting all material facts properly pleaded. [Citation.]" (Blank v. Kirwan (1985) 39 Cal...

Excerpt: ...e demurrer filed by TCS because it has never paid taxes to the Franchise Tax Board is not supported by factual evidence that it has failed to do so or that it is required to do so in order to defend against Plaintiff's complaint. The demurrer by Defendants Saybrook and TCS to the First Cause of Action for Breach of Contract, Count One, is SUSTAINED WITH LEAVE TO AMEND for failure to state a cause of action and uncertainty. Plaintiff's First Count...

Excerpt: ... that the representations made by Wells Fargo regarding whether or not she was eligible for a HAMP loan, were false. Generally, in order to succeed on a theory of delayed discovery, the plaintiff must show that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period." Fox v. Ethicon Endo-Surgery, Inc....

Excerpt: ...hino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.) Although the court ultimately vacated the jury verdict, the court had previously denied the Defendant's motion for summary judgment and the jury found in favor of Plaintiff. Therefore, the court finds that the present case was not frivolous or without foundation when it was brought or litigated and Grants the motion to strike the memorandum of costs filed by Defendant, The Regents of ...

Excerpt: ...burden harass and annoy Tesla and the witness because the nonparty has no personal knowledge of the events at issue and will only serve to elicit inadmissible character evidence. "The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." Code Civ. Proc., § 2031.060, subd. (b).) In his opposition, Plaintiff ...

Excerpt: ...ore 35 Special Interrogatories, Requests for Admissions, and Request for Production of Documents. On September 17, 2019, Defendants served Plaintiff with 116 Requests for Production of Documents, 112 Special Interrogatories, and 182 Requests for Admission, along with Form Interrogatory 17.1. The Special Interrogatories and Requests for Admissions included Declarations for Additional Discovery by Defendants' counsel, pursuant to Code of Civil Proc...

Excerpt: ...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).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the unde...

Excerpt: ...ears. Plaintiff alleges that he performed well in all classes until his instructor for the medical surgery clinic treated him unfairly based on his age and gender. Plaintiff alleges that he was forced to do additional work and to re-do assignments, which caused emotional distress and lack of sleep, which affected his performance and contributed to the number of time he was tardy for class. Plaintiff alleges that his instructor gave him an unwarra...

Excerpt: ...fense. (Cal. Rules of Court, rule 3.1322.) Because the Amended Complaint does not have a separate claim for punitive damages clearly identified in the prayer, the court will not speculate as to which portions of the complaint Defendant seeks to have stricken. However, the court notes that had the motion been properly noticed, from reviewing the allegations in the complaint, the court would be inclined to grant the motion to strike as the complain...

Excerpt: ...ide discovery disputes was discussed in the stipulation as an item to be decided and does not appear to have been finalized based on the representation by Defense counsel. The court will not require that Mr. Edwards hear the present motion. Second, CP V JLS, LLC claims that the request were not intended to seek information after the retention of FTL as a consultant. "It has long been recognized that the work of an expert-consultant is protected b...

Excerpt: .... 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 may...

Excerpt: ...including that the complaint is uncertain and that Plaintiff lacks standing to bring the claims. In reviewing the Second Amended Complaint and the matters of which the courtmay take judicial notice, the court finds that Plaintiff has not adequately demonstrated her standing as either a borrower or owner who can assert the applicable causes of action. Based on the review of the recorded documents of which the court takes judicialnotice, Ms. Valdez...

Excerpt: ...(TRG 2011 ed.) ¶¶ 8:1211-8:1215.1, and cases cited therein.) Even if the court were to consider the request for terminating sanctions to have been based on conduct other than Defendants failing to respond to discovery or paying sanctions after the court's order compelling Defendants to do so, it appears that there are still other remedies available to address such conduct short of dismissing the case, such as further monetary sanctions and evid...

Excerpt: ...ant John B. Sanfilippo & Son, Inc. is ordered to submit its first appearance fees within two weeks of the service of this order. Additionally, the parties have submitted insufficient evidence to support their assertions that the civil penalty assessed by the consent 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...

Excerpt: ...ed. (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: ...employee or any other person." (Gov. Code § 815(a).) A cause of action against a governmental entity must identify the statutory basis of liability and facts essential to the existence of such statutory liability. (See, e.g., Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179-1180; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) The Sixth Cause of Action is not premised on a statute that provides f...

Excerpt: ...sition testimony clearly identifies documents that are responsive to Plaintiff's requests kept at Defendant's home and on her cellular phone. While Defendant's declaration in support of her opposition claims that all relevant documents have been produced, the court finds that the deposition testimony contradicts Defendant's declaration. To the extent that the declaration contradicts Plaintiff's testimony, the statements are not considered by the ...

Excerpt: ...s "fair, adequate and reasonable." (See, e.g., Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 244-45.) Further, the parties are to be prepared to discuss why attorney's fees of $416,666.67 are justified in the present action given that it appears that the parties engaged in discovery and then reached a settlement at mediation in a little over a year after the complaint was filed. Plaintiff's references to the risks taken by counsel in...

Excerpt: ...nterrogatory No. 4.1 has changed several times and Defendant's failure to produce the applicable policies until over a year after the initial request was served. The court is not convinced that Plaintiff should not be allowed take the deposition of Tesla's PMK regarding insurance simply because after the present motion to compel was filed, Defendant produced the applicable insurance policies. Tesla is ordered to produce its person most knowledgea...

Excerpt: ...ves "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.) Although Defendants argue that the complaint is uncertain because although it referenced an exhibit containing the commercial lease agreement, but no such agreement was attached, the court does not find that the failure to attach the lease agreement renders the Second Amended Complaint unc...

Excerpt: ...al merit and interim harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 677-78.) The primary purpose of a preliminary injunction is to preserve the status quo pending a trial on the merits. (O'Connell v. Superior Court (2006) 141 Cal. App. 4th 1452, 1472; Cox Cable of San Diego v. Bookspan (1987) 195 Cal App.3d 22, 25.) The cour...

Excerpt: ...aarsdam & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015 Rev., formerly Weil & Brown) ¶ 9.105.10.) The evidence before the court demonstrates that the report drafted by David Oxford that was withheld by Tesla as privileged, was not subject to either attorney/client privilege or the work product doctrine. Specifically, the court considers the deposition testimony of David Oxford, an Environmental Health and Safet...

Excerpt: ...ended Complaint, including the additional specificity requested by the court when sustaining the last demurrer to the two causes of action for Violation of Civil Code section 2923.5 and 2924.17, that Plaintiff has not adequately alleged that there was a violation as defined under 2923.5(e). Plaintiff's allegations state that although she contacted Defendant and they did not respond in a meaningful way to constitute due diligence. (First Amended C...

Excerpt: ...h v. White Corporation (2017) 13 Cal.App.5th 1086. The motion does not comply with C.C.P. § 437c(b)(1), which requires a "separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." The failure to comply with this requirement "may in the court's discretion constitute a sufficient ground for...

Excerpt: ...ction is OVERRULED. 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: ...s 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 gives the complaint a reasonable interpretation...

Excerpt: ...r 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 evidence would allow a reasonable trier ...

Excerpt: ....) In amending, Plaintiff shall take note of Defendant's arguments in its demurrer, as to the asserted substantive flaws in each of the causes of action, and Plaintiff shall have a good faith basis in fact and law for asserting causes of action in an amended complaint. (See C.C.P. § 128.7(b).) Plaintiff shall also consider the authority cited in the demurrer, including Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 10...

Excerpt: ...h v. White Corporation (2017) 13 Cal.App.5th 1086. The motion does not comply with C.C.P. § 437c(b)(1), which requires a "separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence." The failure to comply with this requirement "may in the court's discretion constitute a sufficient ground for...

Excerpt: ...ghter. Only the guardian ad litem may assert such a claim, which renders the complaint uncertain. Further, Plaintiff, Ulrika During who does not appear to be an attorney licensed with the California State Bar, cannot appear on behalf of her daughter Saturninia because to do so would be in violation of Business and Professions Code section 6125, which states that "No person shall practice law in California unless the person is an active member of ...

Excerpt: ... 10:00 a.m. in Department 15 of the Alameda County Superior Court, 1221 Oak St., Oakland to show cause, if any, why sanctions should not be imposed pursuant to Code of Civil Procedure section 128.7, for the following conduct: On June 28, 2019, attorney Donald C. Schwartz signed and filed, and thereafter advocated, a motion to set aside and vacate default judgment arguing that the default judgment should be vacated, which had already been heard an...

Excerpt: ... the Third, Sixth, Seventh, Ninth, Tenth and the claim for punitive damages 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 ...

Excerpt: ...s, 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 p...

Excerpt: ...endant is named in that cause of action. As currently pled, there are no facts specifically indicating why Schubert is liable for any of the claims asserted. Plaintiffs' blanket references to "defendants", plural, throughout the First Amended Complaint is insufficient to put Schubert, or any of the 10 other named defendants, on notice as to why they are being sued. In particular, claims based on fraud must be pled with particularity, including wh...