Excerpt: ...fn. 2.) Therefore, Defendant's motion for summary adjudication of the punitive damage claims is GRANTED. Defendant's motion for summary judgment is DENIED for the reasons set forth below. Plaintiffs contend that plaintiff Robert G. Fenstermacher was exposed to respirable asbestos fibers from Defendant's asbestos-containing steam traps while serving in the U.S. Navy aboard the U.S.S. Bon Homme Richard from 1965 to 1967. LEGAL STANDARDS FOR MOTIONS...

Excerpt: ...x Costs with respect to Defendant's Memorandum of Costs filed 6/9/2020, but not served on Plaintiffs until 6/22/2020. LEGAL STANDARDS FOR MOTIONS FOR RELIEF FROM DEFAULT Under Code of Civil Procedure section 473(b), "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or...

Excerpt: ...id- to late-1970's, was exposed at construction sites on which he worked to respirable asbestos fibers from asbestos- containing stucco and fireproofing manufactured and/or furnished by Defendant to plastering and other contractors, including, inter alia, Joel McCray and Thomas F. Scollan. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended ...

Excerpt: ...ising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) Further, "the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (CCP § 36(e).) MOTION FOR PREFERENCE Plaintiffs se...

Excerpt: ...NIED for the reasons set forth below. Plaintiffs contend that plaintiff Robert G. Fenstermacher was exposed to respirable asbestos fibers from Defendant's asbestos-containing steam traps while serving in the U.S. Navy aboard the U.S.S. Bon Homme Richard from 1965 to 1967. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action ha...

Excerpt: ...ng manufactured and/or furnished by Defendant to plastering and other contractors, including, inter alia, Joel McCray and Thomas F. Scollan. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "[T]he party moving for summary judgment b...

Excerpt: ...amages against Martinelli because Plaintiffs do not have evidence that Martinelli acted with malice, oppression, or fraud. STANDARD OF LAW "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 acti...

Excerpt: ...ny order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (CCP § 2031.060(b).) As pertinent here, "[t]his protective order may include, but is not limited to, one or more of the following directions: . . . [t]hat all or some of the items or categories of items in the demand need not be produced or made available at all[,] . . . [and/or] [t]hat the i...

Excerpt: ...joint tortfeasor of Lorillard, where this Court has already conclusively adjudged in Berg v. Alta Bldg. Materials, RG 17-84928 (the "Prior Action," an asbestos torts action to which all of Plaintiffs, Defendant and Lorillard were parties, that Defendant is not a tortfeasor with respect to Plaintiffs or a joint tortfeasor with respect to Lorillard. Plaintiffs may file and serve an amended Complaint no later than Friday, July 31, 2020. ALLEGATIONS ...

Excerpt: ...ver, Plaintiffs have waived their Third and Fourth Causes of Action with respect to the MSA. (Opp. MSA at p. 1, fn. 1.) Therefore, the only issue remaining to be decided by this Court is whether Defendant is entitled to summary adjudication of Plaintiffs' punitive damages claim. The Court finds that Plaintiffs' written discovery responses are "factually devoid" with respect to Plaintiffs' punitive damages claims, thereby shifting the burden of pr...

Excerpt: ...ssors-in-interest Sacomo Manufacturing Co. or Sacomo-Sierra Inc. (collectively "Sacomo") during the period between 1963 and 1967. Defendant admits for purposes of this MSJ/MSA that it is the successor in interest to Sacomo. (Moving MPA at p. 2:19-21. See also Defendant's Undisputed Material Fact ("UMF") No. 19, constituting Plaintiff's admission that Decedent allegedly worked with or around Defendant's asbestos-containing products only between 19...

Excerpt: ...s this initial burden, then the defendant has the burden of demonstrating 'that the exercise of jurisdiction would be unreasonable.'" (Id.) "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (CCP § 410.10.) "California's long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution." (Young v. Daiml...

Excerpt: ...ding asbestos-containing products, whether there were any asbestos-related OSHA violations, or whether any tests were conducted on its products to determine the asbestos content of those products. In this regard, General Cable cannot rely on its claim that it did not make or distribute asbestos-containing telephone wire during the relevant time period to refuse to respond to these special interrogatories. The questions relate to General Cable's k...

Excerpt: ...ype of metal worker, between approximately the late 1950's and the late 1970's. Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th...

Excerpt: ...g findings: (1) [t]he party has a substantial interest in the action as a whole[] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical ...

Excerpt: ...Ms. Artukovich in this action. BACKGROUND FACTS AND PROCEDURAL HISTORY Plaintiffs allege that decedent, Kris Elizarraras ("Decedent"), was exposed to asbestos from her father and brother, Guillermo and Glenn Vega (the "Vegas"), who worked cutting asbestos-cement pipe. More than a year ago, Defendant filed a Motion for Summary Judgment/Motion for Summary Adjudication (MSJ/MSA). Shortly before Plaintiffs' Opposition was due, Defendant produced docu...

Excerpt: ...ny regarding past drug use, both of prescription drugs and of recreational drugs/drugs of abuse. On 2/21/2020, the Court Ordered Plaintiff to serve an amended privilege log regarding redactions made to Plaintiff's medical records, which amended privilege log Plaintiff's counsel served on March 4, 2020. LAW RE: MOTIONS TO COMPEL "[A] civil litigant's right to discovery is broad." (Yelp Inc. v. Superior Court (2017) 17 Cal. App. 5th 1, 15.) "[A]ny ...

Excerpt: ...nday, October 26, 2020 at 8:30 a.m. in Dept. 18 subject to the additional Orders of Court set forth below. "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing...

Excerpt: ...e[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) The standard under subdivision (a) includes no requirement of a doctor's declaration. (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) "To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration 'based upon information and belie...

Excerpt: ...lish a foundation for the expert opinion he purports to render. Plaintiff Richardo Ocampo ("Mr. Ocampo") has been diagnosed with malignant mesothelioma. He alleges that he was exposed to respirable asbestos while he worked in the presence of Defendant's employees as they disturbed asbestos- containing materials at the Synertek building in Santa Cruz during the 1980's. STANDARD OF LAW "When an application for an order has been made to a judge, or ...

Excerpt: ...embarrassment, or oppression, or undue burden and expense." (CCP § 2025.420(b).) "This protective order may include, but is not limited to, one or more of the following directions: . . . [t]hat the deposition be taken at a different time[,] . . . [t]hat the deposition be taken only on certain specified terms and conditions[,] . . . [t]hat the testimony be recorded in a manner different from that specified in the deposition notice[,] . . . [t]hat...

Excerpt: ...gations 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.) "As a general rule ...

Excerpt: ...usable neglect (CCP § 473(b)) regarding Plaintiffs' failure to timely file opposition papers to seven pending motions for summary judgment, including the present MSJ/MSA. Therefore, the Court has not considered Plaintiffs' Opposition papers. Nevertheless, the Court has carefully reviewed the evidence in support of Defendant's proffered Undisputed Material Facts with respect to what is effectively an unopposed motion. Plaintiffs' decedent Loren R...

Excerpt: ...elevant part: "(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (e) Notwithstanding any other provision ...

Excerpt: ...d., and Whitaker, Clark & Daniels, Inc. (the "joining defendants") each filed a "Notice of Joinder" in Defendant's Motion on, respectively, 5/1/2020, 5/8/2020 and 5/11/2020, which in each Notice purports to "join" in Defendant's pending Motion and "incorporates by reference" moving Defendant's evidence and arguments. Further, each Notice of Joinder purports that if Defendant withdraws the Motion or Defendant having already been dismissed, each jo...

Excerpt: ...irely by statute." (Id.) "It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party." (Id. [internal citations omitted].) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (CCP § 1032(b).) Allowable costs under this statute are outlined in Code of ...

Excerpt: ...basis not inconsistent with the Constitution of this state or of the United States." (CCP § 410.10.) "[W]hen a defendant moves the trial court to quash service of summons for lack of personal jurisdiction, the plaintiff has the initial burden of proving that sufficient contacts exist between the defendant and California to justify the exercise of personal jurisdiction." (Pedus Bldg. Servs., Inc. v. Allen (2002) 96 Cal. App. 4th 152, 161 [interna...

Excerpt: ...parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) PLAINTIFF'S EVIDENCE Plaintiffs provide deposition testimony by Mr. Watts stating that he is 60 years old. (Plfs.' Ex. A at 16:12-15.) Plaintiffs also provide the declaration of Robert J. Fallat, M.D. ("Dr. ...

Excerpt: ...endant shall serve verified Responses to RFAs Nos. 1-35 admitting or denying each RFA without objections no later than fifteen (15) days after entry of this Order. In opposition to the Motions to Compel, Defendant principally argues that when Judge Kaus granted an ex parte application continuing trial in this case, he was without authority to also order that discovery deadlines would be governed by the new trial date. At the time of the ex parte ...

Excerpt: ...tiffs fail to submit sufficient evidence to create a triable issue of material fact regarding whether the franchisee was an agent of Defendant rather than an independent contractor. Defendant's Motion for Summary Adjudication is DENIED as moot. If any party wishes to contest the tentative ruling, no later than 4:00 PM two (2) court days prior to the hearing (exclude Saturday, Sunday and national holidays) contesting party must email dept.18@alame...

Excerpt: ... telephonic hearing please call 888- 214-9934. The password is Alameda2020. If not timely contested, and the tentative ruling will become the final order of the Court. Defendant Calaveras Natural Resources, Inc.'s ("Defendant") Motion for Summary Judgment is GRANTED. Defendant's Motion for Summary Adjudication is DENIED AS MOOT. TIMELINESS OF MOTION PAPERS Defendant objects to Plaintiffs Ricardo Ocampo ("Mr. Ocampo") and Elvia Ocampo's ("Mrs. Oca...

Excerpt: ...n interest to Square D Company ("Square D"), an electronics manufacturer, whom Plaintiffs allege is responsible for some asbestos- containing circuit breaker boxes around which plaintiff Ronald Wilgenbusch ("Mr. Wilgenbusch") worked during his 20+ year U.S. naval career. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has...

Excerpt: ... the court finds that the party does not have a substantial interest in the case as a whole." (CCP § 36(b).) "A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision." (Id.) On September 19, 2019, Plaintiffs brought this case against Defendants arising from the death of Decedent Daniel S. Dena as a result of mesothelioma. Decedent's daughter, Ariana Dena ("Ariana") is eleven years old. (Index o...

Excerpt: ... the court finds that the party does not have a substantial interest in the case as a whole." (CCP § 36(b).) "A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision." (Id.) On September 19, 2019, Plaintiffs brought this case against Defendants arising from the death of Decedent Daniel S. Dena as a result of mesothelioma. Decedent's daughter, Ariana Dena ("Ariana") is eleven years old. (Index o...

Excerpt: ...nterest to Allen-Bradley ("Allen-Bradley"), an electronics manufacturer, whom Plaintiffs allege is responsible for some asbestos- containing circuit breaker boxes around which plaintiff Ronald Wilgenbusch ("Mr. Wilgenbusch") worked during his 20+ year U.S. naval career. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has ...

Excerpt: ... substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) Noably, "[t]he standard under subdivision (a), ..., includes no requirement of a doctor's declaration." (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) "To the contrary, a motion under subdivision (a) may be supported by nothing more t...

Excerpt: ...entiality is required by law, court records are presumed to be open." (Cal. Rules of Court, Rule 2.550(c).) "The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) [t]here exists an overriding interest that overcomes the right of public access to the record; (2) [t]he overriding interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prej...

Excerpt: ... 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 not owe a ...

Excerpt: ...joint tortfeasor of Lorillard, where this Court has already conclusively adjudged in Berg v. Alta Bldg. Materials, RG 17-84928 (the "Prior Action,)" an asbestos torts action to which all of Plaintiffs, Defendant and Lorillard were parties, that Defendant is not a tortfeasor with respect to Plaintiffs or a joint tortfeasor with respect to Lorillard. ALLEGATIONS OF PLAINTIFFS' PRESENT COMPLAINT AND OTHER RELEVANT FACTS Plaintiff's Complaint in the ...

Excerpt: ...Defendant Eaton is the successor in interest to Cutler-Hammer Inc. ("Cutler- Hammer"), an electronics manufacturer, whom Plaintiffs allege is responsible for some asbestos-containing circuit breaker boxes around which plaintiff Ronald Wilgenbusch ("Mr. Wilgenbusch") worked during his 20+ year U.S. naval career. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceedi...

Excerpt: ...campo") and Elvia Ocampo's ("Mrs. Ocampo") (collectively, "Plaintiffs") Opposition as untimely. Plaintiffs filed their Opposition to this Motion on March 3, 2020, ten calendar days before the hearing date. The Court's December 17, 2019 Trial Setting Order states that oppositions for Motions for Summary Judgment are due 10 days before the hearing. (Dec. 17, 2019 Trial Setting Order at p. 4 [see ¶ 16].) Thus, the Opposition is timely. Defendant's ...

Excerpt: ...r a total of $1,250.000. The settlement agreement states there will be attorneys' fees of up to $416,666.67 (33%), costs of up to $20,000, a service award of $10,000 for the class representative, and settlement administration costs of $20,000. After these expenses, the class would get $783,333.33. The average payout per class members would be $653. The settlement was mediated with the assistance of Jeffrey Ross. The court gives "considerable weig...

Excerpt: ...ion as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond...

Excerpt: ...gs: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) Notably, "[t]he standard under subdivision (a), ..., includes no requirement of a doctor's declaration." (Fox v. Superior Court (2018) 21 Cal. App. 5th 529, 534.) "To the contrary, a motion under subdivision (a) may be s...

Excerpt: ...f it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c (a) (1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled 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...

Excerpt: ...adjudication with respect to which Plaintiff has failed to serve timely oppositions. Further, Plaintiff has not timely sought relief for a problem which Plaintiff's counsel was aware of since at least 11/27/2019. FACTUAL AND PROCEDURAL BACKGROUND A Trial date of 3/16/2020 was set in the present action on 5/22/2019. (See 5/22/2020 Case Management Order.) On 7/1/2019, Plaintiff's counsel, who has considerable experience representing plaintiffs in a...

Excerpt: ... party, is entitled to recover attorney's fees and costs incurred in defending its rights under the Note and Deed of Trust at issue in this case and pursuant to Civil Code section 1717. Plaintiffs brought this action on December 4, 2018 against U.S. Bank and other defendants, asserting claims for breach of contract, breach of implied covenant of good faith and fair dealing, negligence, unfair business practice, and accounting based upon the handl...

Excerpt: ..., 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." (CCP § 437c(f)(1).) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Id.) "[T]he party moving f...

Excerpt: ...ype of metal worker, between approximately the late 1950's and the late 1970's. Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th...

Excerpt: ... Defendant, namely Selbalith "Navy Magnesite," a product which manufacturer and licensor Selby-Battersby Company ("SBC") has admitted contained 2% to 3% asbestos in its dry form until at least 1969 and which substantially matches the description of large bags of "magnesite" applied and sanded by Defendant's agents in plaintiff's presence in late 1962 or early 1963 on the USS Gridley. Defendant's Motion for Summary Adjudication ("MSA") with respec...

Excerpt: ...ntial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party." ...

Excerpt: ...First United Credit Union ("First United") (collectively, "Defendants"). In this action, Broadmoor alleges that the Individual Defendants planned an ouster of Pastor Marcia Flagg ("Flagg") and a takeover of the Board of Directors of Broadmoor by calling an improperly noticed meeting to insert a new unelected Board of Directors. (Second Am. Compl. ¶ 15.) Broadmoor alleges that Porter caused a Statement of Information to be filed with the Californ...

Excerpt: ...ment amount, so Plaintiffs made a motion to enforce the settlement agreement, which the Court granted. On October 28, 2019, the Court entered judgment against Defendants Robert L. Telles, Jr., and Telles, Walker & Kochenderfer, LLP for $165,359.99 (the "Judgment"). Plaintiff states that the current amount of the Judgment is approximately $175,000 plus attorney's fees and costs to enforce the Judgment. Plaintiff states that the Judgment remains un...

Excerpt: ... an appeal bond or undertaking. Therefore, the present action is not stayed by the appeal, and the Court may grant the unopposed relief Creditor requests. (CCP §§ 917.1, 917.4.) Creditor obtained a judgement on its complaint to, among other things, enforce a mechanic's lien for home remodeling work performed on the real property commonly known as 1118 Manor Boulevard, San Leandro, Alameda County, California (the "Property"). Creditor subsequent...

Excerpt: ...d inadequacy in Ford's Warnings caused his injury; (2) Mr. Stroth's Cause of Action for Negligent Design fails as a matter of law because Plaintiffs cannot establish that a reasonable manufacturer would have used a different design; (3) Mr. Stroth's Cause of Action for Strict Liability - Design Defect fails as a matter of law because Plaintiffs cannot establish that there was anything wrong with the product apart from the claimed lack of warnings...

Excerpt: ...with respect to plaintiff Donald Stroth ("Mr. Stroth"). Mr. Stroth, who has been diagnosed with mesothelioma, alleges that he was a flooring contractor who worked with and removed previously laid DAP asbestos- containing adhesives and other products between 1970 to 1978. LEGAL STANDARDS "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, ...

Excerpt: ...efendant on each of (i) Arciero & Sons, Inc.; (ii) Arden Group, Inc.; (iii) Odom Corporation; (iv) Clearwater Pipeline, Inc.; (v) Pipeline Materials, Inc. c/o Wells Pipeline Materials, Inc.; (vi) Regal Construction Company; (vii) Doty Borthers [sic] Equipment, Inc.; (viii) Pipeline Engineers, Inc.; and (ix) Stoddard Company Bell Gardens, Inc., the Motion to Quash is GRANTED IN PART and DENIED IN PART. Defendant's business records subpoenas to the...

Excerpt: ...or other parties to evaluate the merits of that claim." (See CCP § 2031.240(c)(1).) At a minimum, Plaintiff must specify whether the redacted portions of his medical records concern treatment for or evaluation of mental conditions or symptoms versus physical conditions or symptoms. Therefore, the Court ORDERS Plaintiff to serve an amended Privilege Log no later than Wednesday, March 4, 2020 that contains "sufficient factual information" to enabl...

Excerpt: ...rights under the Note and Deed of Trust at issue in this case and pursuant to Civil Code section 1717. Plaintiffs brought this action on December 4, 2018 against U.S. Bank and other defendants, asserting claims for breach of contract, breach of implied covenant of good faith and fair dealing, negligence, unfair business practice, and accounting based upon the handling of a loan for their property located in Fremont, California. As against U.S. Ba...

Excerpt: ...) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (e) Notwithstanding any other provision of law, the court...

Excerpt: ... elements of these causes of action as a matter of law. Plaintiffs' Opposition to the MSA does not address Defendant's contentions, except to state in response to each of Defendant's Undisputed Material Facts Nos. 1-44, "Plaintiffs hereby waive their [third/fourth] cause of action for [negligent misrepresentation/fraud by nondisclosure.]" Therefore, the MSA with respect to Plaintiff's Third and Fourth Causes of Action is GRANTED. With respect to ...

Excerpt: ...t in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that ...

Excerpt: ...the Court requests that the parties address the following issues. Plaintiff should be prepared to address what evidence in the record exists to support her burden to show that Plaintiff was a qualified person with a disability, i.e., that Plaintiff could perform the essential functions of her prior position or any other then open position with Defendant, with or without reasonable accommodations, as of June 4, 2012, the date of the adverse employ...

Excerpt: ...e same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." (CCP § 1008(a).) "The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." (Id.) In addition, "[t]he court may, upon any terms as may be just, relieve a party ...

Excerpt: ... has been diagnosed with malignant mesothelioma. He alleges that he was exposed to Defendant's asbestos-containing products while working as a custodian at various car dealerships. Demurrer to Third Cause of Action - False Representation per Restatement 2d of Torts § 402B California case law recognizes a cause of action for a seller's false representations pursuant to §402B of the Restatement 2nd of Torts. (Westlye v. Look Sports Inc. (1993) 17...

Excerpt: ...thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed." (CCP § 918(b).) "This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed." (CCP § 918(c).) A stay under section 918, as sought here by General Cable, "does not extinguish or prevent the creation of a lien under Artic...

Excerpt: ... in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Id.) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (CCP § 1032(b).) "[T]he trial court has no discretion to order each party to bear h...

Excerpt: ...96, 107. Decedent Kenneth Dale ("Decedent") died of mesothelioma allegedly caused in part by breathing in asbestos-containing dust produced by brake parts and clutch assemblies he purchased from Kragen, Defendant's predecessor in interest, in Healdsburg, CA, which parts Decedent used for home auto repair. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show th...

Excerpt: ...ew or further trial granted on all or part of the issues, on the application of the party aggrieved, for . . . [i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law." (CCP § 657.) "The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses." (Seffert v. Los Angeles Transit Lines (1961) 56 Cal. 2d 498, 507.) "[W]hen ...

Excerpt: ...ettlement agreement. Plaintiffs do not submit a copy of the document or documents constituting the parties' alleged settlement agreement. Without a copy of the final settlement agreement, the Court is unable to determine whether the parties have entered into an enforceable settlement agreement and cannot enter a judgment in the appropriate amount. Plaintiffs' declaration of counsel states that on 11/20/2017, Plaintiffs and Defendant reached an or...

Excerpt: ...er 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) Notably, "[t]he standard under subdivision (a), ..., includes no requirement of a doc...

Excerpt: ...ry sought is relevant to defendant CertainTeed Corp.'s potential liability herein. (See Rawnsley v. Sup.Ct. (1986) 183 Cal.App.3d 86, 91.) Further, Plaintiffs should be prepared to address what remedies will be available to them if they are allowed to depose CertainTeed now regarding the recent asset transfers that will not be available to them if Plaintiffs are forced to wait until the completion of trial to conduct this discovery. The Court not...

Excerpt: ...h respect to punitive damages. Decedent Kenneth Dale ("Decedent") died of mesothelioma allegedly caused in part by breathing in asbestos-containing dust produced by removal of Durametallic's packing and gaskets on the USS Cavalier, a Navy ship on which Decedent served from February 1965 through November 1967. There is no evidence in the record for the MSA that Decedent was exposed to respirable asbestos from one of Defendant's or Durametallic's p...

Excerpt: ...96, 107. Decedent Kenneth Dale ("Decedent") died of mesothelioma allegedly caused in part by breathing in asbestos-containing dust produced by brake parts and clutch assemblies he purchased from Kragen, Defendant's predecessor in interest, in Healdsburg, CA, which parts Decedent used for home auto repair. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show th...

Excerpt: ...or "Fluor") regarding Plaintiffs' newly asserted punitive damages claims within twenty (20) days of electronic service. Further, the Court ORDERS each of Plaintiffs, upon timely service of a Notice of Further Deposition, to sit for further deposition regarding solely Plaintiff's newly asserted punitive damages claims, which depositions shall be completed no later than Friday, February 14, 2020. Plaintiffs allege asbestos personal injury causes of...

Excerpt: ...ter than the close of business on Tuesday, January 7, 2010, Plaintiffs may serve by electronic transmission Special Interrogatories, Requests for Production of Documents, and a Notice of Deposition of Lockheed's Person Most Qualified ("PMQ") (CCP § 2025.230) with respect to information and documents tending to show whether the State of California has specific personal jurisdiction over Lockheed. Lockheed shall serve by electronic transmission re...

Excerpt: ...perty") on January 26, 2017. (Compl. ¶¶ 1-2, 13.) Plaintiff seeks an order compelling Defendant Khaled Saeed and his insurance carrier, State Farm Insurance Company ("State Farm"), to produce certain unredacted documents identified on their privilege log in a letter and CD dated January 16, 2019 for an in camera inspection to determine if any privilege(s) applies. The Court had initially granted this Motion on May 23, 2019, but that Order has b...

Excerpt: ...f the facts in the Complaint and asserts seven affirmative defenses. After Defendant failed to respond to Plaintiff's Requests for Admissions, the Court entered an order deeming the admissions admitted on January 22, 2019. STANDARD OF LAW FOR MOTION FOR JUDGMENT ON THE PLEADINGS A court may grant a motion for judgment on the pleadings "[i]f the moving party is a plaintiff," and "the complaint states facts sufficient to constitute a cause or cause...

Excerpt: ...as subject to a five-year/100,000 mile powertrain warranty, and a later a 10-year/150,000 extended warranty. Plaintiff asserts that despite the repair attempts a steering defect persisted in his vehicle. Plaintiff alleges that Defendant knew about the defect through multiple means but concealed the steering defect, minimized the scope, cause and dangers of the defect, and refused to investigate, address and remedy the defect in the vehicles. Plai...

Excerpt: ...ECOND AMENDED COMPLAINT Plaintiff first filed this action on October 13, 2015. Plaintiff then moved to amend its Complaint in October 2018. After that motion was granted, Plaintiff filed the First Amended Complaint ("FAC") on December 14, 2018. On April 28, 2019, the Court sustained with leave to amend Defendants' demurrer to the Eighth through Twelfth Causes of Action in the FAC. On May 23, 2019, Plaintiff filed a Second Amended Complaint ("SAC"...

Excerpt: ...levant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an o...

Excerpt: ... 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 be," unless the "complaint contains allegations of fact inconsistent with at...

Excerpt: ...er 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 against a demurrer t...

Excerpt: ...nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." (CCP § 1021.5.) "'[V]oluntary' corrective action, induced by litigation, may properly be consid...

Excerpt: ...nst any of the parties who filed the complaint] except one filed [at the same time as the answer]." (CCP § 428.50(c).) "Leave may be granted in the interest of justice at any time during the course of the action." (Id.) Parker seeks leave to file a Cross-Complaint on the grounds that the Cross- Complaint arises out of the same transaction or occurrence as the Complaint. This action arises from a slip-and-fall incident that occurred on or about A...

Excerpt: ...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: (A) [a] ...

Excerpt: ...endant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Id.) "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (CCP § 1032(b).) "[T]he trial court has no discretion to order each party to bear his or her own costs." (Michell v. Olick (1996...

Excerpt: ...ose . . . sanctions against anyone engaging in conduct that is a misuse of the discovery process[.]" (CCP § 2023.030.) "Misuses of the discovery process include, but are not limited to . . . [d]isobeying a court order to provide discovery." (CCP § 2023.010(g).) "[I]f a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a...

Excerpt: ...rike 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 amendm...

Excerpt: ... any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; or (3) ...

Excerpt: ...h Health & Safety Code section 25249.6; (C) the reimbursement of $31,000 for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; and (D) the civil penalty of $4,000 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). The CJ requires that no later than thirty (30) days after the Effective Date, Defendant Sur La Table, Inc. ("D...

Excerpt: ...nse, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction[.]" (CCP § 2031.310(i).) "In lieu of, or in addition to, that sanction, the court may impose a monetary sanction[.]" (Id.) "The court may impose a terminating sanction by . . . [a]n order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process ...

Excerpt: ...2019. "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order." (CCP § 473(d).) Plaintiff Isaac Livingston's ("Plaintiff") Motion to Compel Production of Documents for an In Camera Inspection was filed on April 26, ...

Excerpt: ...f 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: ...cation 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 to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owe...

Excerpt: ...ries by unknown third parties due to their failure to control the crowd and ensure security of guests at the event, inadequate staffing, lack of competently trained staff, and sub-standard security. (FAC ¶¶ 20-23.) Plaintiffs seeks summary adjudication against sixteen affirmative defenses asserted by AEG: Second Affirmative Defense (Third Party Liability); Third Affirmative Defense (Statute of Limitations); Fourth Affirmative Defense (Fault of ...

Excerpt: ...claim, Plaintiffs seek discovery related to the vehicle, Defendant's warranty and related policies, and Defendant's analysis and investigation of defects similar to those alleged in regards to the vehicle Plaintiffs purchased. (See Memo. Sup. Mtn., pp. 1-2.) Plaintiffs' present motion asserts Defendant has failed to comply with this Court's orders related to IDCs, particularly an IDC Order of May 29, 2019. (See id. at pp. 3-4.) Defendant does not...

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: ... has the burden to prove that all jurisdictional criteria are met. (See Yavapai-Apache Nation v. Lipay Nation of Santa Ysabel (2011) 201 Cal.App.4th 190, 206.) Here, Moving Defendant has submitted compelling evidence that it is a sole- member LLC established under the Limited Liability Corporation Act of the Blue Lake Rancheria Tribe of California, the sole member of which is the Blue Lake Rancheria Economic Development Corporation, which is a co...

Excerpt: ... that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists," except under certain situations outlined by statute. (CCP § 1281.2.) The Court will not order arbitration of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist for the revo...