Excerpt: ... must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "[I]f a plaintiff pleads a claim that fails to state a cause of action, a demurrer is properly sustained[.]" (Boxer v. City of Beverly Hills (2016) 246 Cal. App. 4th 1212, 1225.) "Where the complaint is defective, '[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend ...

Excerpt: ...because it was filed more than 35 days after October 15, 2019 when this action was filed. However, as Plaintiff mailed the summons and complaint to Defendants via first-class mail on October 15, 2019, the Court finds that this Demurrer is timely as it was filed on November 21, 2019 which is within 40 days of October 15, 2019 on or before November 22, 2019. (Cal. Civ. Proc. Code § 415.20 ["When service is effected by leaving a copy of the summons...

Excerpt: ...th respect to the family home in Fremont, California. As part of the parties' divorce in July 2005, Defendant was permitted to occupy the home until January 21, 2010, but Defendant did not vacate until late 2011. Plaintiff alleges that Defendant had damaged the property by failing to maintain it. After recovering from medical issues, Plaintiff in late 2017 inspected the home to sell the property and discovered that from 2012 to 2018, Defendant co...

Excerpt: ...Court APPROVES the Settlement Agreement. The Court has considered (1) the relative strength of Plaintiff's 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 extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel that se...

Excerpt: ...ever is later." The court sua sponte reconsiders the class definition because the end date of the class period as previously defined did not permit an opt-out period. The class definition must have a clearly identified beginning and end date. The temporal scope of the amended class definition is based the court's expectation that the notice period will commence on November 1, 2019. The court redefines the class as "All persons then homeless whose...

Excerpt: ...obtain an Administrative Use Permit. The building permit was suspended on the grounds that the building permit was approved in error due to Plaintiff's intended demolition at the property. Plaintiff brought this action for inverse condemnation and negligence because Plaintiff was prevented from continuing construction at the property. STANDARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. ...

Excerpt: ... § 430.10(e), (f).) Plaintiffs oppose. For the reasons stated below, JMMCI's demurrer is OVERRULED. LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, 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 in...

Excerpt: ...ndant. On 1/28/19, AEG filed a motion to strike the DOE amendment based on procedural grounds and also lack of merit due to the settlement agreement. On 6/5/19, the court denied the motion to strike because the statute of limitations did not bar the claims. The court did not address the effect of the settlement agreement because on a motion to strike the court is confined to the pleadings. STANDARD AEG seeks order CCP 128.7 that claim against AEG...

Excerpt: ...de . . . the making or opposing of motions . . ." (CCP § 128.5(b)(1).) "Frivolous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP § 128.5(b)(2).) Sanctions are warranted where a filing is brought without any legal grounds, after an unreasonable delay, and/or with a complete lack of evidence to support the filing. (Finnie v. Town of Tiburon (1988) 199 Cal. App. 3d 1, 13-15.) There is an ...

Excerpt: ...e 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 against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may ...

Excerpt: ...o 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: (A) [a] provision of law confers an unconditional right ...

Excerpt: ... of the factual allegations in a complaint." (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.)...

Excerpt: ...scription of documents, none of the five documents is relevant nor likely to lead to the discovery of admissible evidence. The documents apparently relate to a potential joint venture "that was never completed." The question of whether or not the logged documents are protected by the attorney-client privilege is moot. For completeness, however, the Court notes that Defendant appears to withdraw its claim of privilege for four of the documents at ...

Excerpt: ... a court of this State, the court in which such action or proceeding is pending, shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]") STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy,...

Excerpt: ... such action or proceeding is pending, shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]") STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and ...

Excerpt: ...f the four essential elements of breach of contract, Defendant attacked only the existence of a contract and damages. (Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 830.) Here, the first cause of action adequately alleged a contract, but did not allege damages. The first cause of action did not incorporate by reference the preceding paragraphs, meaning they cannot be relied upon to supply the missing allegations. (See Steiner v. R...

Excerpt: ...red televisions which Decedent allegedly serviced as a television repairman at some point in time between 1951 and 1956. (Def.'s Sep. Stmt. of Undisp. Mtr. Facts ["UMF"] Nos. 1-5.) Plaintiffs' operative First Amended Complaint ("FAC"), filed August 7, 2018, alleges three causes of action for negligence, strict liability, and conspiracy. Only the first two are alleged against Defendant. Defendant has moved for summary judgment and in the alternati...

Excerpt: ..."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. Defendant did not meet his initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 848-855.) Defendant did not negate the essential element of breach of the standard of care in the sense of entirely disproving ...

Excerpt: ...., Vanil, Inc., Vanmel, Inc., Vansh, Inc., Varris Management, Inc., Yadav, Inc., Yadav Enterprises, Inc. aka JIB Management, Inc.) and Anil Yadav (collectively, "Defendants" or "Settling Defendants"). The operative pleading is a Second Amended Class Action Complaint recently filed by stipulation of the parties. To protect the interests of absent class members, class action settlements must be reviewed and approved by the Court. (Duran v. Obesity ...

Excerpt: ...s against respondent The Regents of the University of California ("Respondent"). On October 3, 2018, the Court granted the Regents' Motion for Judgment on the Pleadings as to Count III (alleging equitable estoppel), and so Counts I, II, IV, V, VI, and VII remain operative. But, Petitioners only gave notice of a motion for summary judgment on Counts I and V. Petitioners needed to address Counts II, IV, VI, and VII. Petitioners did not give notice ...

Excerpt: ...prove 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 settlement notice to the class and provides or denies preliminary approval; later, the Court considers objections by class members and grants or denies final approval. (Cal. Rules of Court, rule 3.769.) When no class has been certified, as is the case here, the Court must determ...

Excerpt: ...act. The allegations of the FAC reveal that the complaint might well be barred because the alleged oral contract may constitute mortgage fraud. That said, the allegations in the FAC do not necessarily establish that the oral contract was definitively mortgage fraud and therefore barred as a matter of law. (See CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) The FAC did not expressly or impliedly unequivocally admit that t...

Excerpt: ...Motion was untimely as to fees incurred "up to and including the rendition of judgment in the trial court" because it was not "served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case." (Cal. Rules of Court, rule 3.1702(b)(1).) Rule 3.1702's deadlines are mandatory. (See Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1725-1726.) On April 5, 2016, judgment was entered in favo...

Excerpt: ...ella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191.) Plaintiff alleged that he was seriously injured in an accident at the Everport marine cargo terminal "[o]n or about September 26, 2016." (Compl. ¶ 8 at 3.) The two-year personal injury statute of limitations of Code of Civil Procedure section 335.1 (former section 340(3)) accrued and began running on that date. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 C...

Excerpt: ...ose individuals who worked for Defendants in the State of California as a delivery driver or other similar job titles at any time on or after the date that is four years prior to when the Complaint was filed. Since the original Complaint was filed on May 5, 2017, this definition would encompass everyone who worked for Defendants at any time from May 5, 2013 through May 5, 2017. Plaintiff also seeks certification of a terminated subclass defined a...

Excerpt: ...ed in this action as counsel for another general partner, Peter Andersen. Plaintiff did not establish "a substantial risk" of concurrent or successive representation of clients with conflicting interests. (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 425-429; see also Coldren v. Hart, King & Coldren, Inc. (2015) 239 Cal.App.4th 237, 250.) Accordingly, Plaintiff did not show that this motion amounts to anything more than improper ...

Excerpt: ...e in reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Defendant also correctly pointed out that the evidence proffered by Plaintiff in support of the Motion papers was not competent evidence. First, the supporting declaration did not correctly track the language of Code of Civil Procedure section 2015.5. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609- 618; accord Bombardier Recreational Products, Inc. v. Do...

Excerpt: ...rsion before the Court is an Amended Joint Stipulation of Class Action Settlement ("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 settleme...

Excerpt: ... Amended Complaint, not a First Amended Cross- Complaint. But, since both sides are referring to that pleading as a FACC, the Court will do the same. Cross-Defendants' general demurrers to the First, Second, and Third Causes of Action for failure to state facts sufficient to constitute a cause of action are SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Cross-Defendants' Request for Judicial Notice is GRANTED. The judicially no...

Excerpt: ...revent a November 28, 2017 sexual assault on Plaintiff at Encinal High School in Alameda. The operative SAC, filed June 28, 2019, alleges four counts against all defendants: failure to maintain safe environment, negligent supervision, intentional infliction of emotional distress, and violation of California Civil Code section 51 et seq. Defendant has pleaded general demurrers to the first, third, and fourth counts. Defendant's Demurrer to the Fir...

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: ...efendant"). Plaintiff seek certification of two classes. The first is "[a]ll non-exempt employees of Payless Car Rental, Inc. in the State of California from July 17, 2013 to the time of final judgment" and the second is "[a]ll employees of Payless Car Rental, Inc. in the state of California who ended their employment with Payless Car Rental, Inc. from July 17, 2014 to the time of final judgment." Plaintiff also seeks certification of two meal br...

Excerpt: ...LC (2014) 59 Cal.4th 348, 382.) Any monetary penalties assessed against the defendant are split between the LWDA and aggrieved employees, with 75% going to the LWDA. (Labor Code § 2699(i).) Representative litigants must submit any settlement of a PAGA representative action for Court approval. (Labor Code § 2699(l)(2).) Unlike government entities represented in False Claims Act qui tam actions, the LWDA does not have a statutory right to interve...

Excerpt: ...endant did not comply with the informal discovery procedure required by Local Rule 3.31 and Code of Civil Procedure section 2016.080. The IDC process probably would have avoided or at least narrowed the scope of the instant Motion. Turning to the merits, the Court would have been forced to deny the motion because Defendant did not bear its threshold burden of proving its entitlement to relief by attaching direct evidence that it served a notice o...

Excerpt: ... The Court notes that Defendants did not comply with the informal discovery conference (IDC) procedure required by Local Rule 3.31 and Code of Civil Procedure section 2016.080. The IDC process probably would have avoided or at least narrowed the scope of the instant Motion. Defendants seek to quash business records deposition subpoenas served by plaintiffs Aries Simmons, Darryl Hadley, and Alden Ortega (collectively, "Plaintiffs") on nonparties I...

Excerpt: ... tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest." (Cal. Rules of Court, rule 2.550(d).) In particular, Defendant Payless Car Rental, Inc. ("Defendant") has designated certain documents produced in discovery as confidential pursuant to the parties' stipulated protective order. Defendant has an interest in protecting the confidentiality of its confidential business information, as do certain putative class...

Excerpt: ... "Uribe action") is GRANTED. Plaintiff's proposed trial plan would create a serious potential for conflicting rulings between this case and the Uribe action. The Orange County Superior Court granted final settlement approval of the class claims there, which overlap claims that had been pending in this case. Plaintiff's proposed trial plan would appear to circumvent the Orange County Superior Court's orders, the Court's April 18, 2019 order denyin...

Excerpt: ...fendants' Motion is GRANTED as to Plaintiff's request for punitive damages. Code of Civil Procedure section 425.13's applicability depends upon the gravamen of a plaintiff's claim. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 434.) If medical care was terminated for a reason that does not violate the Unruh Act, then liability based on that medical decision is subject to Code of Civil Procedure sec...

Excerpt: ...lity, negligent misrepresentation, fraud by nondisclosure, vicarious liability based on respondeat superior, premise owner/contractor liability, and loss of consortium. Defendant is named under all causes of action. The Complaint also demands "exemplary or punitive damages according to proof." (Compl. at 27:15.) UNDISPUTED MOTIONS Defendant's Motion is GRANTED as to Plaintiffs' Third Cause of Action for Negligent Misrepresentation and Fourth Caus...

Excerpt: ...n support of the Cross-Defendants' Reply. The Court acknowledges the procedural objections raised by plaintiff Ronald Eichman ("Plaintiff"), but the Court is also reluctant to further delay reaching the merits, unless there is a truly colorable dispute over the existence of an agreement to arbitrate. In other words, the Court needs to know what dispute, if any, might be raised in the form of supplemental briefing or in an opposition to a renewed ...

Excerpt: ...isrepresentation, fraud by nondisclosure, vicarious liability based on respondeat superior, premise owner/contractor liability, and loss of consortium. Defendant is named only under the first through fourth and the seventh causes of action. The Complaint also demands "exemplary or punitive damages according to proof." (Compl. at 27:15.) UNDISPUTED MOTIONS Defendant's Motion is GRANTED as to Plaintiffs' Third Cause of Action for Negligent Misrepre...

Excerpt: ... burden of proof. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) The general rule is that "[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that [they] were not reasonable or necessary." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Thus, the trial court must first determine whether costs are allowable at all under the relevan...

Excerpt: ...fendants' Motion is GRANTED as to Plaintiff's request for punitive damages. Code of Civil Procedure section 425.13's applicability depends upon the gravamen of a plaintiff's claim. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 434.) If medical care was terminated for a reason that does not violate the Unruh Act, then liability based on that medical decision is subject to Code of Civil Procedure sec...

Excerpt: ... for settlement purposes. 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 is obligated to ensure that the "agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, i...

Excerpt: ...04.3, 211-4-211.3, 214.1, and 216.1; Special Interrogatories Nos. 5-10, 12, 15, 18, 21, 23, 24, 26-109; and Requests for Production of Documents, Set One, Nos. 2-5, 10, 12, 13-15, 17, 18- 23, 25-40, 44-49, and 54-103. (Code Civ. Proc. §§ 2030.300(a), 2031.310(a).) Plaintiff's Motion to Compel is also treated as a Motion to Compel Compliance and as such is GRANTED as to all of the foregoing Requests for Production of Documents. (Code Civ. Proc. ...

Excerpt: ...Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499 is not a pro forma exercise. Without sufficient evidence and analysis of the settlement by the settling parties, the Court is left primarily to draw inferences and speculate concerning more than one of the Tech- Bilt factors. "[W]ithout the facts . . . it is impossible for a court to exercise its discretion in an appropriate fashion." (Grand Terrace, 192 Cal.App.3d at 1263.) It is a...

Excerpt: ...or the trial court to allow a plaintiff to serve the Secretary of State without having made that mandatory showing. (See Bakersfield Hacienda, Inc. v. Superior Court (1962) 199 Cal.App.2d 798, 803-805.) Plaintiff's Motion only showed that he had been unable to serve Defendant's designated agent. Corporations Code section 1702(a) differs from its ancestor, former section 3303 (as quoted in Bakersfield Hacienda), in that it uses the word "or" to di...

Excerpt: ... is treated as Motion for a Protective Order as to both deponents and is GRANTED. The parameters of the protective order, which will govern the conduct of the Atkinson deposition, are set out below. These motions are directed to Petitioners' notices for the depositions of two former Presidents of the University of California: Richard C. Atkinson (1995-2003) and Robert C. Dynes (2003-2007) (collectively, the "deponents" or "witnesses"). Neither de...

Excerpt: ... Although Defendant did not expressly tender this issue in his notice of motion, the supporting papers gave ample notice of the relief sought. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) In this instance, Plaintiff merely alleged that Defendant "negligently maintained a premises on which the plaintiff lived and allowed her to be beaten and abused as alleged herein." But such mere negligence and inaction is not enough. Plaintiff did not...

Excerpt: ...d impose a considerable burden on them to travel to Oakland for a single hearing. (Cal. Rules of Court, rule 7.952(a).) Only Plaintiff's counsel is required to appear in person at the hearing in Department 16. Counsel for the defendants are welcome to observe but are not required to appear in person. The foregoing ruling is predicated upon the following conditions: First, the Petition as filed and lodged omitted Attachment 18a. Plaintiff's counse...