Excerpt: ...s burden to show, for each cause of action, that "one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action." (CCP § 437c(p)(2); see Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220-221.) If the defendant has made this showing, the burden then shifts to the Plaintiff to show one or more triable issues of material fact. (CCP § 437c(p)(2).) "In order to...

Excerpt: ...ts discretion" to "[s]trikeout any irrelevant, false, or improper matter inserted in any pleading." "In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff." (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255 [internal citations omitted].) "In passing on the correctness of a ruling on a motion to strike, judges read allegations of a ...

Excerpt: ... response to J-MM's subpoena, they suspected that J-MM had limited its request to specific job or jobs that it knew did not involve asbestos-containing pipe products. Plaintiffs served their own subpoena on WVWD shortly thereafter seeking all documents regarding WVWD's relationship with J-MM and documents regarding asbestos pipe. WVWD produced roughly 200,000 documents on November 19, 2019. J-MM claims it needs time to review these documents and ...

Excerpt: ... Settlement Agreement provides that unclaimed funds will escheat to the Cal. Dept. of Industrial Relations ("DIR") Unclaimed Wages fund. However, according to the DIR's website at , the Labor Commissioner no longer accepts funds payable as a result of the settlement of private litigation. Nevertheless, if the parties (1) enter a modification of the Settlement Agreement containing a proper cy pres designation; and (2) file and serve an appropriate...

Excerpt: ... conditional class certification for purposes of settlement. Plaintiffs also seek court approval of claims raised under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Labor Code §§ 2698 et seq.). This motion was set for hearing on October 30, 2019, but was continued to this date to allow the parties an opportunity to address concerns with the form of notice and contents of the proposed settlement agreement. The parties have subm...

Excerpt: ...d the PARTIES ARE ORDERED TO APPEAR. LEGAL STANDARDS The purpose of summary adjudication 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.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) A party may move for summary ad...

Excerpt: ... products manufactured or supplied by defendants, including A-L. Decedent was allegedly exposed to asbestos because of asbestos dust carried home on the clothing of his parents, Jorge and Alysa Perreras. For the reasons discussed below, A-L's motion is GRANTED as a motion for summary judgment, and A-L is ordered to prepare a proposed judgment of dismissal. LEGAL STANDARDS The purpose of summary judgment and adjudication procedures is to allow thi...

Excerpt: ... that a Satisfaction of Mortgage ("SM") was recorded for the property on July 24, 2019. QLSC declares non-monetary status pursuant to Civil Code section 2924l. BANA has filed papers in opposition to the motion. For the reasons discussed below, the motion is DENIED. PROCEDURAL MATTERS Opperwall's motion is untimely. A motion for judgment on the pleadings may not be made against a defendant before the defendant has filed an answer and Plaintiff's t...

Excerpt: ...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 Court (2018) 21 Cal.App.5th 5...

Excerpt: ...continue. The hearing on this motion will be CONTINUED to December 30, 2019, at 3:00 P.M. in Department 19, Administration Building (Third Floor), 1221 Oak Street, Oakland. A. Father Van Dinh's Clergy File. Plaintiff seeks production of certain documents maintained by RCBO as part of Fr. Van Dinh's "clergy file," which the parties both describe as containing the same kinds of personal information that may be included in employee personnel files. ...

Excerpt: ...Joe's Co. Plaintiff's counsel has submitted a declaration including the As You Sow consent judgment, which includes a process by which the defendants in that case fund a panel of scientists to research and lower the "naturally occurring" levels set in that litigation. Plaintiff's counsel also declares that cocoa and cocoa powder are a commodity product whose source is not always readily ascertainable. This does not change the Court's analysis. Pl...

Excerpt: ... that his agreement is unenforceable. For the reasons stated below, Plaintiff's motion is DENIED. This action shall be stayed pending a final determination at arbitration. LEGAL STANDARDS The Federal Arbitration Act ("FAA") (9 U.S.C. §§ 1 et seq.) embodies a "liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary." (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp...

Excerpt: ...eement in its current form. In lieu of denying the motion, the hearing on this motion is CONTINUED to January 27, 2020, at 3:00 P.M. in Department 19, Administration Building (Third Floor), 1221 Oak Street, Oakland, to provide the parties an opportunity to revise the Settlement Agreement and provide supplemental material RIGHT TO ORAL OBJECTIONS SHOULD NOT BE WAIVED BY FAILURE TO OBJECT IN WRITING The class notice currently states that "even if y...

Excerpt: ...ests that constitute an undue burden to OUSD. OUSD's argument is that, by slightly varying the content and terms of the requests at issue. OUSD's examples include special interrogatories asking for all persons who "assisted in the preparation of" a board resolution, all persons who assisted in the preparation of the factual findings therein, and the official duties of all persons named in those answers. (Special Interrogatories Nos. 3-5, 8-10, 13...

Excerpt: ...83.310 ["An action shall be brought to trial within five years after the action is commenced against the defendant."].) On July 6, 2015, the Court set a trial date of July 15, 2016. On June 21, 2016, this was continued by stipulation to January 13, 2017. On January 4, 2017, that date was continued to January 26, 2018. On January 10, 2018, the trial date was dropped by stipulation. On May 1, 2018, the Court set a new trial date of April 26, 2019. ...

Excerpt: .... In their earlier motion, Petitioners argued that the Respondent's mechanic's lien is invalid because Respondent failed to give notice to a purported construction lender. The Court initially tentatively denied the motion but continued the motion to allow for an evidentiary hearing on contested issues of fact. In the Petition before the Court today, Petitioners seek relief solely on the separate grounds that Plaintiffs' action to enforce the lien...

Excerpt: ...e 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 interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Unless a heightened pleading standard applies, a complaint nee...

Excerpt: ...(collectively "J&J"). Plaintiff alleges that Defendant is a "Talc Defendant." Plaintiff alleges that Defendant Rio Tinto Minerals, Inc., a Utah corporation, is the successor-in-interest, parent, alter ego, and equitable trustee of Rio Tinto Minerals, Inc., a Delaware corporation. Plaintiff alleges that all the named Defendants manufactured, sold, distributed, or otherwise placed into the stream of commerce talc powder products containing asbestos...

Excerpt: ... below, the motion is DENIED. LEGAL STANDARDS The purpose of summary judgment and adjudication 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.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is prope...

Excerpt: ...y approved the settlement agreement on July 10, 2019, and ordered the parties to give notice of the settlement to the absent class members. The Court CONFIRMS its Order of July 10, 2019, certifying a class for settlement purposes. The Court APPROVES the Settlement Agreement. The Court has considered (1) the relative strength of the Plaintiffs' case; (2) the high risk, expense, complexity, and likely duration of further litigation of this dispute;...

Excerpt: ...ies an opportunity to address concerns with the form of notice and contents of the proposed settlement agreement. The parties have submitted an Amended Settlement Agreement and revised class notice, and the Court now considers the sufficiency of those documents as revised. When no class has been certified, as is the case here, the Court must determine whether the case meets requirements for certification. (See Anchem Prods., Inc. v. Windsor (1997...

Excerpt: ...v. Proc. § 1005(b).) Plaintiffs served their motion papers on opposing counsel on October 29, 2019, and filed them with the Court on October 30, 2019. The noticed hearing on this motion is November 4, 2019. The motion was, in short, filed on the third Court day before the hearing. Furthermore, the settlement agreement purports to settle claims raised under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Lab. Code §§ 2698 et seq....

Excerpt: ...hicles' warranties had expired. It further alleges that Alani owns a 2012 model-year Sorento, which he purchased new in February 2012 and took it in for engine repairs in March 2015, August 2017, April 2018, June 2018, and August 2018. The Complaint also alleges that, in October 2018, KMA sent a letter to the owners of all 2012 Kia Sorentos (among model years and other models with the same engine). The letters informed the owners of a "Product Im...

Excerpt: ...l steroid injection. As a result of that injection, Plaintiff allegedly suffers chronic pain and loss of vision in her right eye. MacLean was named as a defendant in this case but dismissed without prejudice on November 1, 2018. The remaining defendants (KFHI, KFHP, and PMG) now move to transfer venue to Santa Cruz County, where Watsonville sits, on grounds that it would be more convenient for the witnesses and would serve the interests of justic...

Excerpt: ...ntiff was granted leave to file a First Amended Complaint on May 14, 2019, but has not yet filed the Complaint. The Court further notes that neither defendant has made an appearance in this case. Also, the Settlement Agreement purports to settle PAGA claims, which are not asserted in the currently operative Complaint. Plaintiff was granted leave to file a First Amended Complaint on May 14, 2019 but has not yet done so. The Court is not inclined t...

Excerpt: ...mmons on the grounds that this Court lacks personal jurisdiction over it. Plaintiffs oppose. LEGAL STANDARDS "A defendant . . . may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her." (Code of Civ. Proc. ("CCP") § 418.10(a)(1).) This motion challenges either a plaintiff's compliance with statutory requirements for service of process or the Court's personal jur...

Excerpt: ...to arrears on his loan. Bea applied for a loan modification from SPS and Chase in late 2018, and SPS and Chase allegedly decided to offer him a "trial period plan" for a loan modification. But SPS and Chase allegedly did not communicate this approval to Bea by telephone (as he had requested) or by mail. If he had received the offered trial payment plan, he allegedly would have availed himself of the opportunity. After Bea failed to make his payme...

Excerpt: ...y in favor of his employer's workers' compensation insurance can be finalized. Defendants URS Midwest, Inc., United Road Services, Inc., Lisa D. Romero (both individually and doing business as "LDK Trucking"), and Jonathan Michael Murray oppose. For the reasons discussed below, the motion is DENIED. PROCEDURAL MATTERS Motion papers must be served and filed at least sixteen court days before the hearing. (Code of Civil Procedure ["CCP"] § 1005(b)...

Excerpt: ...gues that no defendant is domiciled in Alameda County and that Whitlach's claims arose in Stanislaus County because he was employed there. Defendant Century 21 seeks to join Premier Valley's motion. The Complaint originally purported to seek damages and restitution on behalf of a plaintiff class, but the Court adopted a stipulated order on June 5 dismissing all claims except those seeking civil penalties under the Labor Code Private Attorneys Gen...

Excerpt: ...l 4, 2019. Colony seeks only to seal five pages (pages 201 through 205 of the Opgenorth Declaration) containing Colony's Claim Handling Guidelines. Colony provides evidence that the information in these pages is not generally known to the public or to Colony's competitors in the insurance market. Colony views these guidelines as part of its competitive advantage for providing efficient customer service in competition for insurance customers. Colo...

Excerpt: ...ent was expressly conditioned on court approval by the bankruptcy court, which it granted. Nevertheless, Anabo and PI2016 did not close the transaction, and Anabo received court approval to sell the Property to Defendants Mansour Ghanbari and Danny Leung. Defendant Tony Anabo demurs to the Third Amended Complaint on the grounds that it still fails to state a cause of action. Defendants Ghanbari and Leung demur on grounds that they are not proper ...

Excerpt: ...fendants oppose. Cross-Defendant Michael Vinding specially moves to strike Defendants' Cross- Complaint as a strategic lawsuit against public participation ("SLAPP") under Code of Civil Procedure section 425.16. Defendants oppose. For the reasons discussed below, Defendants motion for reconsideration is DENIED, HOA's demurrer is OVERRULED and its alternative motion to strike is DENIED. Vinding's special motion to strike is DENIED AS MOOT and Defe...

Excerpt: ... 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 interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been gi...

Excerpt: ...is GRANTED for the convenience of witnesses under section 397, subdivision (c). Best Buy is ORDERED to pay the costs of transfer. LEGAL STANDARDS On timely motion before the deadline for a defendant's responsive pleading, the Court must transfer venue if it is "not the proper court" to hear an action under the venue statutes. (Code of Civil Procedure ["CCP"] § 396b.) The Court has discretion to order that the place of trial be changed to another...

Excerpt: ...) 134 Cal.App.4th 997, 1006.) Plaintiffs allege harm in the form of diminution in value of their taxi medallions, caused by Uber's unfair competition, but seek disgorgement of Uber's profits, and fail to allege facts showing that Plaintiffs ever possessed, or had a vested ownership interest in, the profits received by Uber. (Id. at 1016 [diminution in value of stock held by plaintiffs due to misrepresentations of defendant was not recoverable as ...

Excerpt: ...t seq.) and the derivative claims/remedies in causes of action two (accounting) and four (injunction), implicate the California Public Utilities Commissions' exclusive jurisdiction and are thus barred by Pub. Util. C. § 1759. (See Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256; San Diego Gas & Elec. Co. v. Superior Court (Covalt) (1996) 13 Cal.4th 893; Davis v. S. California Edison Co. (2015) 236 Cal.App.4th 619.) Although the scope of t...

Excerpt: ...) 134 Cal.App.4th 997, 1006.) Plaintiffs allege harm in the form of diminution in value of their taxi medallions, caused by Uber's unfair competition, but seek disgorgement of Uber's profits, and fail to allege facts showing that Plaintiffs ever possessed, or had a vested ownership interest in, the profits received by Uber. (Id. at 1016 [diminution in value of stock held by plaintiffs due to misrepresentations of defendant was not recoverable as ...

Excerpt: ...arty to meet and confer by telephone prior to filing the demurrer and file and serve a declaration with the demurrer regarding the meet and confer process and outcome. Both parties should comply with the statutory requirements in future. The demurrer to Plaintiffs' first cause of action for interference with prospective economic advantage is SUSTAINED WITH LEAVE TO AMEND, for Plaintiffs to allege, if they may do so in good faith, an existing econ...

Excerpt: ...il Procedure ("CCP") section 438(c)(1)(B)(ii) "performs the same function as a general demurrer[] and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed." (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064; see Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767- 1768.) Like a general d...

Excerpt: ...enged litigation tactic is the "making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected." (CCP § 128.5(f)(1)(B).) A party moving for sanctions under Section 128.5 must serve their motion papers as usual, but shall not file them with the Court for 21 days or another time set by Court order. (Ibid.) If, after the safe har...

Excerpt: ...rm is safer than other automobile transportation services, that riders do not have to tip their Uber drivers because the tip is included in the fare, and that Uber stated it could pick up and drop off passengers at San Francisco International Airport ("SFO") and Los Angeles International Airport ("LAX") when they did not have legal authorization to do so. Plaintiffs have testified that, since Uber entered the market, they now work longer hours to...

Excerpt: ...Decl. Ex. A; 3. Decl. of W. Stern Supp. Def.'s Oppn. to Class Certification ["W. Stern Decl."], Ex. EE [Decl of J. Stricchiola]; 4. W. Stern Decl. Ex. CC [Declaration of Terry Lloyd]; 5. Opposition Brief, portions of p.9 ln. 16, p.10 ln. 11, and p.14 lns. 4-5; and 6. Pls.' Objs. to Def.'s Evid. at Class Certification, Obj. 19 at p. 42 lns. 25-27, and p.43 lns. 2-11, 14-15, 17-18, and 19-23. The Court finds that the documents submitted in oppositi...

Excerpt: ...for motions to strike. Some aspects of the proposed motion to strike do not appear to have much merit. For example, the question of puffery is a question of fact that is rarely disposed of at summary adjudication, let alone on the pleadings. Similarly, whether a statement is "false and misleading" may not be amenable to resolution at the pleadings stage. In addition, the court questions how the proposed motion will advance these proceedings if it...

Excerpt: ...he allegations." (C.C.P. §§ 431.10(b)(3), (c).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (C.C.P. § 437.) WHETHER SAFETY CLAIMS ARE PUFFERY AS A MATTER OF LAW. Defendant seeks to strike paragraphs 34-50, which concern "driver safety," on the grounds that the alleged statements in paragraphs 34-43 constitute puffery as a matte...

Excerpt: ...as appeared in the action but has not paid the complex case fee is required to pay the fee within ten days of the filing of this order. The complex case fee is $1,000 for each plaintiff or group of plaintiffs appearing together and $1,000 PER PARTY for each defendant, intervenor, respondent or other adverse party, whether filing separately or jointly, up to a maximum of $18,000 for all adverse parties. All payments must identify on whose behalf t...

Excerpt: ... of Civil Procedure ("CCP") section 998 (hereafter, "998 Offers"). When a defendant makes a 998 offer, the Plaintiff rejects the offer, and the Plaintiff fails to receive a more favorable judgment, then the Court has discretion to award, "in its discretion, . . . a reasonable sum to cover postoffer costs of the services of [outside] expert witnesses . . . actually incurred and reasonably necessary [to the defendant's case] . . . ." (CCP §998(c)(...

Excerpt: ... except" those specifically denied. (Answer at p.1, ¶ 2.) The only substantive assertion in the answer is that Phetphomassouk "do[es] not have enough income to make payment." Phetphommasouk has not filed papers opposing this motion. He is encouraged to seek counsel experienced in debt collection defense to avoid future prejudice to his case. For the reasons stated below, BANA's motion is GRANTED WITH LEAVE TO AMEND. LEGAL STANDARDS A plaintiff m...

Excerpt: ...b) failure to pay minimum wages, (c) failure to provide meal and rest breaks, (d) failure to provide accurate wage statements, (e) failure to maintain accurate payroll records, (f) failure to pay all wages earned, (g) failure to pay earned wages at termination, (h) failure to provide one day's rest in seven, (i) failure to provide reporting time pay, (j) failure to provide adequate seating, (k) failure to reimburse for necessary business expenses...

Excerpt: ...bers. The motion for final approval was heard on March 21, 2019, and continued to today because of the Court's concerns regarding insufficient service of class notice. Class counsel, acting as settlement administrator, has declared that he has since identified mailing addresses for the remaining un-notified class members and has transmitted class notice. Counsel further reports that none of these four class notices has been returned as undelivera...

Excerpt: ...fication and preliminary approval of class action settlement is hereby CONTINUED to Monday, July 15, 2019, at 3:00 P.M. A. Written objections should not be required to appear at hearing The parties' Stipulation and Settlement Agreement ("Settlement Agreement"), in paragraph 4.4.1, purports to require objectors to submit a written statement of objection within 60 days of the mailing of notice or waive their right to appear at the final approval he...