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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...