Excerpt: ... which would purportedly preclude Drivers from recovering anything and would cost Drivers their jobs. Plaintiffs contend that Defendants offered these Drivers less than what is being sought in this action and less than what certain drivers are seeking through arbitration. When Plaintiffs had discovered these communications in September 2019, they expressed to Defendants' counsel that such communications were inappropriate, but Defendants' counsel...

Excerpt: ... 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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did ...

Excerpt: ...ke is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendmen...

Excerpt: ...ut in the parties' agreement." (Oct. 21, 2019 Statement of Decision at p. 1.) A court may only award attorneys fees where authorized by contract, statute or law. (CCP § 1033.5(10).) Plaintiff seeks attorney's fees based on her successful claim that Defendant John Searle breached the settlement agreement between the parties, which has a fee-shifting provision that states that: "In any dispute arising from this Agreement, the prevailing party shal...

Excerpt: ...itled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of produ...

Excerpt: ...ina Pet Salon, LLC's ("KPS, LLC") customers, (2) using KPS, LLC's confidential and proprietary information; and the Court also orders Defendant to (3) surrender and provide to Plaintiffs KPS, LLC and Francisco Reynoso the administrative passwords and any additional information that will enable them to gain control over KPS, LLC's social media, domain name and other online accounts, including but not limited to the domain name "https://katrinaspet...

Excerpt: ...ter; (B) The award of attorney's fees is reasonable under California law; and (C) The penalty amount is reasonable under in light of the section 25249.7(b)(2) factors. More generally, the Court must ensure the parties' settlement "serves the public interest." (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 62.) CEH set several motions for 12/3/19 regarding Proposition 65 claims involving acrylamide. CE...

Excerpt: ...h. On 2/15/18, the court issued an order dropping the motion for summary judgment from the calendar without prejudice. The order also stated, "This action is STAYED pending appointment of a personal representative of Mr. Ginn's estate or his successors-in-interest." On 8/7/18, Plaintiffs filed a first amended complaint in which Mrs. Ginn individually and as representative of her husband's estate, asserted claims for wrongful death. Sadly, on 9/5/...

Excerpt: ...rit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as ...

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: ...ies and acts of violence on its property but did not provide notices warning that robberies, theft, and violent acts frequently occur in BART stations and cars. Plaintiff further alleges that BART security cameras were inoperable, and the fact that cameras are frequently inoperable is widely known to would-be criminals. Plaintiff also alleges that BART did not have an employee present in the attendant booth at the time of the attack, and it is wi...

Excerpt: ...t." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) 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." (Id.) "As a general rule in testing a pleading...

Excerpt: ...iled a First Amended Complaint that also asserted that his vehicle was equipped with a dash camera that recorded video of the traffic accident. On 7/30/19, the court ordered plaintiff to provide responses by 8/12/19. On 8/8/19, Plaintiff provided responses to the Form Interrogatories, but not to the request for documents. On 10/4/19, defendant filed this motion. On 10/28/19, plaintiff filed an opposition, asserting that on or about 3/28/19 the vi...

Excerpt: ...motions for reconsideration. To the extent that they might be motions for reconsideration, the court exercises its discretion and will consider the motions on the merits. PLEADING SPECIFICITY A complaint must include "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (CCP 425.10.) A complaint "ordinarily is sufficient if it alleges ultimate rather than evidentiary facts." It is adequate if the complai...

Excerpt: ...uses of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to ...

Excerpt: ...premises of Plaintiff at the Property; and (3) possessing, selling, using, or destroying any of the business assets or property of Plaintiff located within the Property, until further order by the Court. "A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the 'interim harm' to that party if an injunction is denied is greater than 'the [inte...

Excerpt: ...tiffs failed to provide adequate notice for this Motion, which should have been served by October 9, 2019 by overnight mail. Instead, the Motion was not served until October 11, 2019. Plaintiffs are admonished to comply with the applicable rules for service in the future. Nevertheless, as Defendants were able to substantively respond, the Court shall rule on the Motion. Plaintiffs seek an order requiring Defendants Red Oak Realty, Inc. ("Red Oak"...

Excerpt: ... 2016. The operative pleading is the Fourth Amended Complaint ("FAC") filed on October 17, 2018. The FAC pleads three causes of action. Defendant is named only under the first cause of action for professional negligence and the second cause of action for wrongful death. The declaration of Thomas Hargrave, M.D. is sufficient to satisfy Defendant's initial burden of production. Dr. Hargrave's declaration establishes that Dr. Hyder met the applicabl...

Excerpt: ...ted to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (CCP § 2033.420(a).) The court shall make this order unless it finds any of the following: (1) an objection to the request was sustained or a response to it was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that that party would prevail on the ma...

Excerpt: ...n." (Cal. Lab. Code § 218.5.) "However, if the prevailing party in the court action is not an employee, attorney's fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith." (Id.) Labor Code section 226 states: "An employee suffering injury as a result of a knowing and intentional failure by an employer to [provide accurate itemized wage statements] . . . is entitled...

Excerpt: ...rounds during the lunch period. Plaintiff alleges that the Dean of Students violated her privacy during the ensuing investigation by asking other students how long Plaintiff and B.M. had been dating, even though Plaintiff informed them she first met B.M. on the date of the assault. Thereafter, other students asked Plaintiff about the incident. In her cause of action for Intentional Infliction of Emotional Distress, Plaintiff alleges that District...

Excerpt: ...l interest in the action as a whole [; and] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." Because this code section is mandatory and considers only the health of the moving party, the Court may not engage in a weighing of interests or comparison of potential prejudice to the opposing party once it finds that the moving party has made its showing. (Fox v. Superior...

Excerpt: ...tion, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs...

Excerpt: ...y noticed motion or ex parte application." (CCP § 387(c).) "The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests." (Id.) "The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) [a] provision of law confers an unconditional right to intervene[...

Excerpt: ...ed the meal and rest break claim. There are approximately 153 members of the class. (La Dec., para 5.) The case preliminarily settled for a total of $320,000. The settlement agreement states there will be attorneys' fees of up to $106,666.67, costs of up to $10,000, a service award of $7,500 for each class representative, settlement administration costs of $14,000. After these expenses, the class would get $174,333.33. This is an average of $1,14...

Excerpt: ...lternative, JCI moves for summary adjudication of the Plaintiffs' claim against it for punitive damages on the grounds that Plaintiffs lack evidence that JCI knew of the risk of asbestos in the products by which William Cole was exposed. For the reasons stated below, the motion for summary judgment is DENIED, and the alternative motion for summary adjudication is DENIED. EVIDENTIARY MATTERS JCI's objection to the entirety of Declaration of Willia...

Excerpt: ...was exposed to asbestos in brake products sold by O'Reilly. Plaintiffs oppose. For the reasons discussed below, O'Reilly's motion for summary judgment is DENIED. LEGAL STANDARDS The purpose of summary judgment procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal...

Excerpt: .... (Cpt, prayer for relief). On 2/26/19 Cullup filed the first amended cross-complaint against SF asserting that SF, as successor in interest to CashCall, violated the CLRA (Civil Code 17890 et seq) , that SF on its own behalf violated the Rosenthal Debt Collection Act (Civil Code 1788 et seq,) and that SF , as successor in interest to CashCall and on its own behalf violated the UCL (Bus & Prof 17200 et seq,).) (See also De La Torre v. CashCall, I...

Excerpt: ...on 387, "[a] nonparty shall petition the court for leave to intervene by noticed motion or ex parte application." (CCP § 387(c).) "The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests." (Id.) "The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied...

Excerpt: ...rs when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) Although "there is a strong public policy favoring the settlement of litigation, this policy does not excuse a contractual clause that is otherwise illegal or unjust." (Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127.) The Court must ensure the settlement is not "contrary to law or to public policy." (Consumer Adv...

Excerpt: ...ll become clear, the Court will rule on the Motion to Strike first. PROCEDURAL HISTORY Plaintiff Terrance Marcel Jones's ("Plaintiff") original Complaint as filed on October 26, 2018 pleaded five causes of action: assault and battery, intentional infliction of emotional distress, negligence, premises liability, and negligent hiring and supervision. Only the fourth cause of action was pleaded against Defendants, and only in the sense that the four...

Excerpt: ... absent class members. The Court CONFIRMS its Order of December 18, 2018 certifying a class for settlement purposes. The Court APPROVES the Settlement Agreement. The Court has considered (1) the relative strength of Plaintiffs' case; (2) the high risk, expense, complexity, and likely duration of further litigation of this dispute; (3) the high risk of maintaining class status through trial; (4) the relatively generous amount offered in settlement...

Excerpt: ...ishes this case from Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865-868. Defendant did not show that she had a "reasonable ground to believe that [she] would prevail on the matter" when she should have known that her defense theory against those elements was based upon a flawed expert opinion not admissible at trial. (Code Civ. Proc., § 2033.420(b)(3); see Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 637-638.) However, Plaintiff did not ...

Excerpt: ...acts sufficient to constitute a cause of action is SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Plaintiff must plead the first cause of action with more specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Plaintiff "must plead every fact which is essential to the cause of action under the statute." (Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207.) Again, Plaintiff has not adequately all...

Excerpt: ...o constitute a cause of action are SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) As the federal district court previously recognized in deciding an earlier motion to dismiss in this action, a high workload in and of itself is not a viable theory of coercive deprivation of meal and rest breaks. (Morales v. Amazon.com, LLC (C.D. Cal., July 30, 2018, No. 2:17-CV-1981-ODW- JEM) 2018 WL 3636888, at *2.) And in California courts, statu...

Excerpt: ...ant final approval of the terms of the Settlement Agreement and the incentive awards, but requires further information before it can approve the attorney's fees requested. The Court has a "fiduciary responsibility as guardian[] of the rights of the absentee class members when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) The Court notes that Plaintiff's counsel seeks...

Excerpt: ...o based snack foods" without a clear and reasonable warning as required by Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. (Compl. ¶ 1 at 1.) Plaintiff now seeks judicial approval of a proposed settlement and consent judgment with Defendant. The Court has a duty in reviewing "Proposition 65 settlement[s] brought by a private plaintiff . . . to safeguard the rights of the public." (Consumer Advocacy Group, Inc. v. Kinte...

Excerpt: ...d that Reeder is a party to an agreement with nonparty Reign Real Estate Services, Inc. ("RRES"). Cross-Defendants did not show that they are nonsignatories with standing to enforce RRES's arbitration agreement with Cross-Plaintiff. (Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 541, 547.) Cross-Defendants' Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to all causes of action. (Code Civ. Proc., § 438(c)(1)(B)(ii).) Cross-...

Excerpt: ...o. RG17872872: Bay Valley Foods, LLC, CVS Pharmacy, Inc., and Costco Wholesale Corporation Case No. RG17881931: Kellogg USA, Inc., Kellogg Sales Company, and Safeway, Inc. Case No. RG17886808: Sunsweet Growers, Inc., and Safeway, Inc. Defendants seek to stay fact discovery by plaintiff Center for Environmental Health ("Plaintiff") in their respective actions until the Court enters liability-phase rulings in Case Nos. RG16838609, RG17851469, RG178...

Excerpt: ...o. RG17872872: Bay Valley Foods, LLC, CVS Pharmacy, Inc., and Costco Wholesale Corporation Case No. RG17881931: Kellogg USA, Inc., Kellogg Sales Company, and Safeway, Inc. Case No. RG17886808: Sunsweet Growers, Inc., and Safeway, Inc. Defendants seek to stay fact discovery by plaintiff Center for Environmental Health ("Plaintiff") in their respective actions until the Court enters liability-phase rulings in Case Nos. RG16838609, RG17851469, RG178...

Excerpt: ...ction against defendants Cold Storage Manufacturing ("CSM") and Cold Storage Design & Build, Inc. ("CSDB") (collectively, "Defendants"). Plaintiff seek certification of a class defined as follows: "All nonexempt construction employees, including panel installers, refrigeration installers, electricians, plumbers, welders, and shop employees, excluding Crew Leaders, employed by Defendants at any time from July 8, 2011 to the present." GENERAL STAND...

Excerpt: ...ssault, battery, intentional infliction of emotional distress, and negligence are all SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Plaintiff's FAC seeks to hold Defendants liable for obtaining temporary restraining orders (TROs) against nonparty Julie Ann McCullough and Plaintiff. The gravamen of Plaintiff's FAC is that in the course of providing legal services, Defendants negligently failed to discover the true facts of Juli...

Excerpt: ..."), alleges that he was injured by an autistic client on November 14, 2016 in Room 33 at Skyline Senior High School ("Skyline"). Defendants allegedly failed to provide additional staff to protect other special education students present in Room 33 while he was working one-to-one with his assigned client. When the client became emotionally agitated, Plaintiff was allegedly forced to divide his attention between protecting other students and de-esc...

Excerpt: ... (See Goodall Decl., filed 5/15/19, at ¶ 2 & Ex. A.) Counsel sending the letter does not even appear on the caption page for Plaintiffs' filings in the case. There is no indication that counsel for Plaintiffs ever reached out to counsel for Caltrans by telephone or in any other way to determine when responsive documents would be produced or to ascertain the reason for the apparent delay in the production. Plaintiffs' contention that a meet and c...

Excerpt: ...members. The Court CONFIRMS its Order of January 29, 2019 certifying a class for settlement purposes. The Court APPROVES the Settlement Agreement. The Court has considered (1) the relative strength of Plaintiffs' case; (2) the high risk, expense, complexity, and likely duration of further litigation of this dispute; (3) the high risk of maintaining class status through trial; (4) the relatively generous amount offered in settlement; (5) the exten...

Excerpt: ...of a Chapter 11 bankruptcy petition imposed an "automatic stay on all state and federal proceedings outside the bankruptcy court against the debtor and the debtor's property." (Shaoxing County Huayue Import & Export v. Bhaumik (2011) 191 Cal.App.4th 1189, 1196.) The Bankruptcy Code's automatic stay normally does not extend to non-debtor defendants like MTC. (Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979.) But, this action is not yet at...

Excerpt: ... Plaintiff filed its operative form Complaint on July 31, 2018, in which it pleaded common counts for open book account and account stated against defendant Kathy Zitani ("Defendant"), and prayed for damages in the amount of $7,458.38. Plaintiff made a prima facie showing that on some unspecified prior date, Defendant applied for and obtained a credit card account with Plaintiff ending in account number 6927 ("the Account"). (Stmt. of Undis. Mtr....

Excerpt: ...rance of the evidence that plaintiff Dolly Rizvi ("Plaintiff") is a party to a valid, enforceable, and irrevocable agreement to arbitrate the claims at issue in this action under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Rosenthal, 14 Cal.4th at 413.) Although MMV's managing member has candidly confessed that he cannot find a copy of the Employee Understanding Disclosure signed by Plaintiff, the facts described are sufficient to establi...

Excerpt: ...t. Plaintiff prevailed by obtaining a default judgment together with an award of attorney's fees. Plaintiff's further request for fees were incurred in protecting and enforcing the judgment. (See Code Civ. Proc. § 685.040; see also Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 938.) The Court will, however, reduce the fee award. First, the 28 hours of claimed time is unreasonably high in light of the actual complexity of the issues that were tend...

Excerpt: ...tcome in Ellison. ELLISON V. AUTOZONE, INC. Defendant has not established that the rule of comity should be applied to stay this action pending the outcome of Ellison. The rule of comity "is merely discretionary when applied to a potential conflict between state and federal courts." (Sumitomo Bank v. Davis (1992) 4 Cal.App.4th 1306, 1312.) Federal courts "do not apply their comity rule of priority to proceedings in personam." (Gregg v. Superior C...

Excerpt: ...rs, class action settlements must be reviewed and approved by the Court. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646 ["The [trial] court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement"].) California follows a two-stage procedure for court approval: first, the Court reviews the form of the terms of the settlement and form of...

Excerpt: ...10(a); Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421 [demurrer for lack of subject matter jurisdiction is general demurrer].) Plaintiff's FAC again did not plead facts showing that Plaintiff exhausted all administrative remedies afforded by Defendant or that a valid excuse exists for not exhausting such remedies. (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1379.) Administrative exhaustion is "a jurisdictional prerequ...

Excerpt: ...was put on hold until June to allow him to attend occupational and physical therapy. (Id. ¶ 5 at 2.) Plaintiff has been diagnosed with chronic obstructive pulmonary disease, chemotherapy-induced neuropathy, stage III chronic kidney disease, asthma, and hypertension. (Id. ¶ 2 at 1.) Plaintiff also has a history of colon cancer, prostate cancer, and skin cancer. (Id.) While the deterioration of Plaintiff's health has been gradual and he has appar...

Excerpt: ...strictive means exist to achieve the overriding interest." (Cal. Rules of Court, rule 2.550(d).) In particular, Defendant has an overriding interest in its commercially sensitive, proprietary, and confidential business data which it disclosed in order to help the Court assess the reasonability of the parties' settlement. (See cf. Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283.) It is clear that the parties have a...

Excerpt: ...he trial date. (California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 22 [explaining initial discovery hold]; Code Civ. Proc. § 2024.020.) In interpreting the Act, the Court must keep the "prodiscovery policies of the statutory scheme firmly in mind . . . . [and] may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature[.]" (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)...

Excerpt: ...ohibiting multiple simultaneous amendments. Since an amended complaint always supersedes all prior complaints, the Second Amended Complaint ("SAC") will be immediately superseded by the Third Amended Complaint ("TAC"). (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130- 1131.) Therefore, the TAC will stand as the sole operative complaint in this action. (Id.) Defendant Nutrakey, LLC ("Defendant") did not show that t...

Excerpt: ...uary 8, 2019. (See Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal. App. 4th 265, 274.) Defendants' Motion is DENIED as to the alter ego allegations in the first through eighth and twelfth causes of action. Paragraph 12 of the SAC alleges several ultimate facts phrased in terms of various alter ego factors. Conclusory pleading of the alter ego factors has been held to be sufficient. (Ruther...

Excerpt: ...g California consumers to acrylamide through animal cracker products without a clear and reasonable warning as required by Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. (Compl. ¶ 1 at 1.) Plaintiff now seeks judicial approval of proposed settlements and consent judgments with Fantasy Cookie and PANOS. The Court has a duty in reviewing "Proposition 65 settlement[s] brought by a private plaintiff . . . to safeguard the...

Excerpt: ...price, or a part thereof, is paid by one person and the title is taken in the name of another." (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) In standard trust terminology, plaintiff Sepi Day ("Plaintiff"), as the payor, is the beneficiary, while defendant Dariush Fakhrabadi, the legal owner of record, is the trustee. Plaintiff did not cite and the Court has not found any authority by which a trustee's spouse is automatically deemed a trustee...

Excerpt: ..."Defendant"). At this time, the Court is generally prepared to grant final approval of the terms of the Settlement Agreement and the incentive awards, but requires further information before it can approve the attorney's fees requested. The Court has a "fiduciary responsibility as guardian[] of the rights of the absentee class members when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal....

Excerpt: ...e to the Labor and Workforce Development Agency ("LWDA") of the "facts and theories" supporting their allegations of Defendants' alleged Labor Code violations. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 835-838 [citing Lab. Code § 2699.3(a)(1)(A)].) Adequate notice to LWDA is a mandatory prerequisite to a Private Attorneys General Act of 2004 ("PAGA") action. (Id.) Plaintiffs' claims are all distinguishable from the sole conclusory ...

Excerpt: ...s v. Marin (2000) 80 Cal.App.4th 380, 386-387.) "The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he [or she] is ignorant of the identity of the defendant." (Id.) Section 474 allows a plaintiff to file a Doe amendment that relates back to the timely filing of the operative complaint. (Id.) If the statute of limitations had not already run as of the date the Doe amendment was filed, then secti...

Excerpt: ...y deponents (the "third parties" or "deponents") on or around March 22, 2019, as follows: 1. Everbank.com c/o Everbank Wealth Management for records of Ariel Feingold 2. Fremont Bank for records of Vivian Meade 3. Homestreet Bank for records of Alison Roberts 4. Homestreet Bank for records of Corynne Condon 5. Old Republic Title Company for records of Corynne Condon 6. Old Republic Title Company for records of Ariel Feingold 7. Old Republic Title...

Excerpt: ...n limine ruling deprived her of a potential comparative fault defense. At trial, the jury found that Plaintiff proved Defendant was negligent in an accident with Plaintiff on the afternoon of June 10, 2016, and that her negligence was a substantial factor in causing injuries to Plaintiff. At the time of the accident, Plaintiff was riding a bicycle eastbound on Gilman Street in Berkeley, California. He was not wearing a bicycle helmet. Defendant w...

Excerpt: ...ght an ex parte application to shorten time. It is a violation of due process to grant a motion against a party who did not receive timely and adequate notice in the manner prescribed by law. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) Defendant and Cross-Complainant Tamara Taylor Reeder correctly objected to Eichman's error on May 13, 2019. Eichman's May 16, 2019 amended notice did not sufficiently cure the error because it was served a...

Excerpt: ...y, "Defendants") request for reimbursement of reasonable out-of-pocket travel expenses associated with Plaintiffs' cancellation of the April 25, 2019 mediation is GRANTED. For the purpose of determining the exact amount of such reimbursement, the hearing on this Motion is CONTINUED to 9:00 a.m. on June 18, 2019 in Department 16, as further explained below. Since the parties and attorneys in this action are so widely dispersed geographically and i...

Excerpt: .... § 761.020(d).) It includes legal conclusions of civil conspiracy, but does not allege facts that constitute such a claim. (See Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316-317.) The partition cause of action does not allege all essential elements. (Code Civ. Proc. § 872.230.) It is possible that some or all of these defects may be curable. The Court will therefore grant Defendant leave to amend on this fir...

Excerpt: ...nterrogatories, Set One (Nos. 1-33), Form Interrogatories, Set Two (No. 17.1), and Request for Production of Documents, Set One (Nos. 1-46, 49, 50), no later than December 18, 2018. (Code Civ. Proc. §§ 2030.300(a), 2031.310(a), 2033.290(a).) Plaintiff's objection-only responses were "evasive and quibbling." (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617.) Plaintiff's objections are meritless. Defendant's request for sanctions...

Excerpt: ...Quiet Title is OVERRULED as to Israel Alvarado and SUSTAINED WITH LEAVE TO AMEND against all other cross-defendants. As to cross-defendant Israel Alvarado, defendant Beatrix Alvarado's ("Defendant") cross-claim for quiet title is simply a mirror image of Israel's quiet title claim in his Complaint (although she appears to concede and not question his 5% interest in the subject property). The Court therefore OVERRULES the Demurrer as to the quiet ...

Excerpt: ...See Code of Civil Procedure section 439(a)(4).) However, the Motion is DENIED because Plaintiff has adequately alleged facts that may give rise to the imposition of a constructive trust and an accounting. Regardless of whether a constructive trust is a remedy or a cause of action, Plaintiff has adequately alleged facts that may entitle Plaintiff to a constructive trust over the real property that is the subject of this action. Specifically, Plain...

Excerpt: ... approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) Although "there is a strong public policy favoring the settlement of litigation, this policy does not excuse a contractual clause that is otherwise illegal or unjust." (Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127.) The Court must ensure the settlement is not "contrary to law or to public policy." (Consumer Advocacy Group, Inc. v. Kintet...

Excerpt: ... Settlement and Release ("Settlement Agreement"). To protect the interests of absent class members, class action settlements must be reviewed and approved by the Court. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646 ["The [trial] court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement"].) California follows a two-stage procedure ...

Excerpt: ...fendant did not bear its burden of proving that Congress intended to preempt state law in this instance. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) California recognizes "four species of federal preemption: express, conflict, obstacle, and field." (Id. at 936.) Each has its own distinct test. (Id.) Defendant incorrectly tried to conflate the latter three types of preemption into a...

Excerpt: ...proper on their face. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Plaintiffs' Motion is GRANTED as to the specific costs challenged. Defendant cannot recover $3,788.61 in costs for depositions not used at trial and not necessary for protection of its rights -- namely, the depositions of Jody Pollak, Ava Lavender, Tanya Cagnolatti, and Julie Lanoff. (Code Civ. Proc. § 1033.5(a)(3)(A).) The "COR" bills from Compex are c...

Excerpt: ...Defendants"). Defendants did not establish that it would be appropriate to stay this later-filed action pending the outcome of plaintiffs George C. McLauchlan and Karen L. McLauchlan's earlier-filed Illinois action. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574-575 [decision to stay is discretionary when actions are pending in courts of different states].) "A discretionary ruling on whether to stay must take into consideration matters outsi...

Excerpt: ...ight have been inclined to award monetary sanctions. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-411 [belated response in face of imminent motion to compel does not deprive trial court of authority to rule on motion].) However, the various versions of Plaintiff's Complaint reveal that Defendant took out the loan at issue to attend law school. On its own motion, the Court takes judicia...

Excerpt: ...y law. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) Defendant Sanjot Singh Kang did not file an opposition and has not waived the error. (Cf. In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829.) The Court urges counsel for Plaintiff to confer with Defendant concerning a stipulation to transfer venue to Contra Costa County, since this case clearly does not belong in Alameda County unless Defendant wishes the case to remain here....

Excerpt: ...fendant did not bear its burden of proving that Congress intended to preempt state law in this instance. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) California recognizes "four species of federal preemption: express, conflict, obstacle, and field." (Id. at 936.) Each has its own distinct test. (Id.) Defendant incorrectly tried to conflate the latter three types of preemption into a...