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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ..."), 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: ...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: ...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: ...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: ...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: ..."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: ...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: ...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: ...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: ...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: ...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: .... § 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: ... 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: ...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...

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...