Excerpt: ...ablished rule that a motion for change of venue must satisfy two requirements: (1) It must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory." (Easton v. Superior Court (1970) 12 Cal. App. 3d 243, 245-46.) Here, Defendant has established that the proper venue for the action is in Contra Costa County given that a...

Excerpt: ...intiff's venue selection is not proper under any of the statutory grounds." (Id.) "It is a long established rule that a motion for change of venue must satisfy two requirements: (1) It must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory." (Easton v. Superior Court (1970) 12 Cal. App. 3d 243, 245-46.) Here, De...

Excerpt: ...th 581, 596; (citing text); Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The underlying complaint involves a claim for personal injury based on premises liability and negligence regarding an ankle injury due to Plaintiff tripping on debris and rubble on the walkway at Defendant's property. (Complaint at Pages 4-5.) Plaintiff seeks to add three unrelated causes of action for Breach of Contract, Breach of Quiet Enjoyment, Civil...

Excerpt: ...o substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The trial court also may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. ...

Excerpt: ...icient responses and supplemental responses. The request to compel further verifications to discovery served on Walmart, Inc., Jessica Meadows and Jeff Cox is DROPPED AS MOOT in light of Plaintiff's representation in the reply papers that properly executed verifications were received. (Plaintiff's Reply at Page 10-16.) The court denies Plaintiff's request to deem the admissions at issue admitted by each of the Defendants. The notice of the motion...

Excerpt: ...trial court by focusing it on the facts essential to the resolution of the motion. It is not the presentation of all facts in a two column format. The court has considered all the evidence submitted. All objections to evidence are OVERRULED. Plaintiff made targeted objections. Defendants made objections to categories of evidence. The Court refers counsel to Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578 fn 6, regarding t...

Excerpt: ...n to the motion. SEVENTH CAUSE OF ACTION In reviewing the First Amended Complaint, the court agrees that Plaintiff has not adequately alleged sufficient facts in support of its cause of action for Intentional Infliction of Emotional distress, which requires showing "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's sufferi...

Excerpt: ...hose personal injuries a recovery is being sought except on a showing of exceptional circumstances." GOOD CAUSE FOR MENTAL HEALTH IME The court finds good cause for a mental health IME. Plaintiff has placed his current mental health in controversy. Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887, states: " The mental condition of a person who is suffering ongoing mental distress is clearly "in controversy" in an action seeking damages fo...

Excerpt: ...iff dismissed the claims against Hilary Altman. On 6/9/21, Hilary Altman' reply observed that although the Anti-SLAPP motion was moot, it was nevertheless relevant because the court must determine the merit of the SLAPP motion to determine whether Hilary Altman is entitled to reasonable fees under CCP 425.16(c). (Moore v. Liu (1999) 69 Cal.App.4th 745, 750-751.) The order of 6/16/21 directed the parties to meet and confer on the issue of fees in ...

Excerpt: ...e ASI's Election Code waives Plaintiff's right to challenge the election in court. The court has addressed this deficiency in detail in its prior orders on the other Defendants' demurrers. Plaintiff attached the Candidate Acknowledgement Form as Exhibit 1 to the original Complaint, but he did not attach it to the First Amended Complaint and instead alleges that he was unaware that when he executed the Candidate Acknowledgment Form that ASI and CS...

Excerpt: ...pra, 39 Cal.3d at p. 318, Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The trial court may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) When ruling on a demurrer, it is improper for the court to consider extrinsic evidence. (See, e.g., Ion Equip. Corp. v. Nelson (1980) 110 Cal.App...

Excerpt: ...to all defendants. DEMURRER BASED ON APPLICABILITY AND CONSTITUTIONALITY OF C.C.P. 340.1 Defendant Oakland Unified School District ("District") and the individual defendants Ronald Solis, and Katherine McLane, demurrer to Plaintiff's First Amended Complaint on the grounds that expanded statute of limitations does not apply to situations where the repeated sexual assault was perpetrated by students and not "an employee, volunteer, representative, ...

Excerpt: ... records related to the Defendant's status as sole proprietors of the New Breach Company from 2014 to the present. In responding to the Request No. 6, Defendants indicated that they would produce the documents. Plaintiffs argue that the production is incomplete because Defendants have not produced their tax returns including Schedule C. Tax returns are generally considered privileged from disclosure. (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509...

Excerpt: ... records related to the Defendant's status as sole proprietors of the New Breach Company from 2014 to the present. In responding to the Request No. 6, Defendants indicated that they would produce the documents. Plaintiffs argue that the production is incomplete because Defendants have not produced their tax returns including Schedule C. Tax returns are generally considered privileged from disclosure. (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509...

Excerpt: ...to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (...

Excerpt: ... both in the products liability cause of action and in the claim for exemplary damages, referring to the Doe defendants generally as Defendants along with the other named defendants. 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 eleme...

Excerpt: ...nt must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in the complaint and those arising by reasonab...

Excerpt: ...Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kir...

Excerpt: ...Investigation Report dated March 2, 2018, including the approximate 30,000 emails, near verbatim transcripts/notes of witness interviews invoices and a spreadsheet listing people who had access to the applicable facility, among other documents, no later than August 31, 2021, in order to provide a further opportunity for this defendant to eliminate the prejudice caused by this spoliation of evidence. Additionally, the court hereby sets an ORDER TO...

Excerpt: ...ant Timothy Low, whose claims appear to be barred by the Government Tort Claims Act. The causes of action related to Mr. Low do not demonstrate either a special relationship, or a mandatory duty to disclose, either by statute or in common law. The claims are similar to Plaintiff's unsuccessful request for adjudication of its claims based on a failure to disclose raised in Plaintiff for Motion for Summary Adjudication, which this court denied. (Va...

Excerpt: ... plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. §?437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying...

Excerpt: ...stitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v....

Excerpt: ...stitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v....

Excerpt: ...n ("Decedent") while at work at the Department of Industrial Relations, Division of Worker's Compensation. The complaint alleges that the decedent's suspicious death was related to the work she performed for her employer, the California Department of Industrial Relations. (Complaint at ¶10-23, 28-37.) Defendants' demurrer to the Complaint on the grounds that the workers compensation system provides Plaintiff with the exclusive remedy for recover...

Excerpt: ...ol during school hours. Plaintiff alleges that Defendant improperly called the police and reported that Plaintiff would not leave the Elementary school campus. (Complaint at 18-23) Plaintiff was arrested for violation of a court order by the police, off campus. Defendant then later sent an email to other individuals at the Livermore Valley Joint Unified School District stating that Plaintiff had broken a court order and was asked to leave "multip...

Excerpt: ...ry basis for maintaining its cause of action for the second cause of action for negligence or the third cause of action for breach of mandatory duty. Except as otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Cal. Gov't Code § 815(a).) Plaintiff must provide a statutory basis for his claim. (East...

Excerpt: .... LEGAL STANDARD A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the...

Excerpt: ... Opposing Defendants object to the court finding that the settlement reached between Plaintiff and the Settling Defendant is in good faith. The Settling Defendant reached the following settlements with each Plaintiff: Plaintiff Camilo Hernandez: $30,000, Plaintiff Sergio Floriano: $49,999.99, and Plaintiff Estaban Rico: $39,999,99. The Plaintiffs were allegedly injured when the concrete formwork collapsed at a construction site, causing Plaintiff...

Excerpt: ... be "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation," and must be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3); Charton v. Harkey (2016) 247 Cal.App.4th 730, 743.) Defendants' motion challenges Plaintiffs' costs in the following four categories: Item 2: Jury Fees of $150.00, Item 4: Deposition Costs of $2,841.90, Item 5: Service of Process fess of $1,500 ...

Excerpt: ...ction for civil penalties brough the California Private Attorneys General Act ("PAGA") is time barred. The statute of limitations to assert a claim under PAGA is one year. (C.C.P. §340(a), Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839.) Plaintiff's last day of employment with Jechi, Inc., against whom the cause of action is alleged, was December 30, 2017. Therefore, the one-year statute of limitations would have expired on December ...

Excerpt: ...ication motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) "Ultimately, disqualification motions involve a conflict between...

Excerpt: .... 4th at p.851.) If the plaintiff makes a prima facie showing that evidence exists to support all elements of a cause of action, then the burden shifts to the defendant to show that one or more triable issues of material fact exist. (CCP section 437c(p)(1).) The Plaintiff has no burden to disprove affirmative defenses and cross-complaints. (Ibid.; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) To establish triable issues of ma...

Excerpt: ...vices, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material fac...

Excerpt: ... to determine whether Hilary Altman is entitled to reasonable fees under CCP 425.16(c). (Moore v. Liu (1999) 69 Cal.App.4th 745, 750-751.) Hilary Altman has reserved a hearing on a motion for fees for 8/6/21. The court ORDERS the parties to meet and confer regarding the amount of fee and make a reasonable effort to settle the issue of fees. This includes discussion about whether Altman requested dismissal of the claim before she filed the motion ...

Excerpt: ...t the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of...

Excerpt: ...e is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to ...

Excerpt: ...stitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry ...

Excerpt: ...mily Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) First, the Second...

Excerpt: ...ecurity Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238.) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A party may also demur o...

Excerpt: ...itute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v....

Excerpt: ...tions or tactics that are frivolous or solely intended to cause unnecessary delay." (CCP §128.5.) "Frivolous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP §128.5(b)(2).) At this point in the litigation, the court cannot Pursuant to §128.5, defendant requests attorney's fees incurred by Plaintiff's counsel for bringing the present motion, which defendant argues was brought in bad fait...

Excerpt: ...nt to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association (2018) 19 Cal. App. 5th 399, 428.) Each of these elements, including causation and damages, must be pleaded with particularity. (Ibid.) To survive demurrer, plaintiff must plead facts that "show how, when, where, to whom, and by what means the representations were tendered." (Hamilton v. ...

Excerpt: ...es not discuss in detail the grounds for awarding attorneys' fees pursuant to contract as they were previously addressed by the Court of Appeal, though the court notes that Plaintiff raises many of the same objections to the award of attorneys' fees, which the court addresses below. (See: Defendant's Request for Judicial Notice at Exhibit B, Pages 14-15.) Additionally, California Rule of Court Rule 8.278(a)(1) and 8.278(a)(3) entitled Defendant, ...

Excerpt: ...hich it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) DEMURRER TO THE SECOND CAUSE OF ACTION- PRODUCTS LIABILITY Defendants demurrer to the second cause of action for products liability on the grounds that they were not manufacturers of the products at issue and were an "end-user" of the product. Plaintiff generally alleges that ...

Excerpt: ... statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice," as alleged in Plaintiff's complaint, is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ.Code, § 3294, subd. (c)(1).) Here, Plaintiff ...

Excerpt: ...ys General Act of 2004 ("PAGA") merely because a trial would be purportedly unmanageable. In enacting the 1953 amendments to the Code of Civil Procedure, it was the Legislature's intent that (subject to narrow exceptions not applicable here) summary judgment is the only mechanism for pretrial disposition of civil actions based on extrinsic evidence outside the pleadings. (Pianka v. State of California (1956) 46 Cal.2d 208, 211-212; accord, Duran ...

Excerpt: ...he Wong Family Trust dated September 11, 2014 and Chicago Title Insurance Company. Defendants and potential cross-complainants seek to allege causes of action against the proposed Cross-Defendants for breach of contract related to a promissory note between Elsa Fucanan, Dictinio Fucanan and MGSACT, Inc., as well as a failure by MGSACT to pay wages and paid time off going back to February through June of 2018, as well as claims for beach of fiduci...

Excerpt: ...provided with the option to purchase 11 of the total 43 townhome units that were to be constructed. (Complaint at ¶¶ 9-26.) DEFENDANTS' BURDEN OF PROOF A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show e...

Excerpt: ... 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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, ...

Excerpt: ...ponses and the tolling of the deadline pursuant to the request for an IDC under Local Rule 3.31 and the Code of Civil Procedure section 2016.080. SPECIAL INTERROGATORIES, SET TWO The court notes that Plaintiff's opposition to the motion to compel does not address the specific deficiencies in her responses to Special Interrogatories, Set Two, Nos. 44, 45, 47, 48, 50, 51, 53 and 54. The court therefore GRANTS the motion to compel as to Special Inte...

Excerpt: ...dgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or...

Excerpt: ...35.1, even if that statute of limitations is tolled until the time Plaintiff reached majority, as provided in CCP section 352(a). Plaintiff's argument that the four-year statute of limitations of CCP section 343 applies to this claim is incorrect. Section 343 only applies to "an action for relief not hereinbefore provided" and, hence, is inapplicable where, as here, the allegations stated against this defendant amount to a claim of negligence. Mo...

Excerpt: .... § 438(c)(1).) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged complaint or be based on facts which the court may judicially notice. (C.C.P. § 438(d); Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548.) "On a motion for judgment on the pleadings, a court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of ...

Excerpt: ...er reporting the sexual harassment. Plaintiff alleges in her First Amended Complaint that she was jointly employed by defendant TPS Solutions, Inc. ("TPS") and Rainin and that her supervisor, Ellis Travis, who is named individually, was also employed by both TPS and Rainin. (First Amended Complaint at ¶¶7-10.) The First Amended Complaint alleges that Plaintiff filed charges with the California Department of Fair Employment and Housing on Novemb...

Excerpt: ...ubd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238.) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 31...

Excerpt: ...tlement is within the "reasonable range" of the settling defendant's proportional share of comparative liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) Courts consider (1) "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability"; (2) "the amount paid in settlement"; (3) "the allocation of settlement proceeds among plaintiffs"; and (4) "a reco...

Excerpt: ...nstitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry...

Excerpt: ...tute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tr...

Excerpt: ...tract, breach of contract in fact, breach of the warranty of habitability implied, breach of habitability in tort, Breach of covenant of good faith and fair dealing , breach of covenant of quiet enjoyment, breach of civil code sections 1941, 1941.1, 1942.4 and 1942.5, breach of business and professions code section 17200, et seq., as well as claims for punitive damages, attorney's fees, and other damages, the court orders as follows: The motion i...

Excerpt: ...RDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3...

Excerpt: ...eneral Standards Resolution of a special motion to strike pursuant to Code of Civil Procedure (C.C.P.) section 425.16 involves two steps. In the first step, the defendant has the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined...

Excerpt: ... services, provided they were of direct benefit to the defendant. The burden is on the person making the quantum meruit claim to show the value of the services. The "reasonable value" of the services has been described as the "going rate" for the services or the "reasonable market value at the current market prices" (Children's Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1274.) Anthem served discovery conc...

Excerpt: ... Mann decided that further exploration of the foot would not be useful. (UMF 13.) Following the surgery, plaintiff observed that the incision was not in the expected location and was larger than expected. Plaintiff reported pain in her left foot. (UMF 14, 15.) EXPERT EVIDENCE / BURDEN SHIFTING "[W]hen considering the declarations of the parties' experts, [the court must] liberally construe the declarations for the plaintiff's experts and resolve ...

Excerpt: ...l.App.2d 813, 817 ["the power of a court to stay proceedings ... was inherent at common law and is now vested in the superior courts of this state"].) (See also CCP 410.30(a).) ORDER FOR STAY Operating Engineers sued Caribou in a federal action. (Operating Engineers v. Caribou, ND Cal Case No. 13:8-cv-02086. Operating Engineers and Caribou entered into a stipulated judgment. The stipulated judgment at para 3 states that Padilla personally guarant...

Excerpt: ...nted MERS's motion to dismiss the claims seeking to cancel the deeds. In January 2013, Malfatti filed a second federal lawsuit involving the property, Malfatti v. Specialized Loan Servicing LLC., U.S. District Court-N.D. Cal., Case No. C13-00287), in which he sued SLS, MERS, and HSBC for wrongful foreclosure. Malfatti voluntarily dismissed the case without prejudice. In March 2016, Malfatti v. MERS, Alameda Case RG16-808857, Malfatti (represented...

Excerpt: ... 2.) On 8/2/18, plaintiff used a DOE amendment to name "NevCal Trucking" as a defendant. On 11/21/18, NevCal Trucking filed an answer. ANALYSIS AND ORDER Defendant NevCal Trucking asserts that the claim is barred by the statute of limitations. The statute of limitations is two years. (CCP 335.1.) The complaint when filed did not name NorCal Trucking. A plaintiff may, however, use the CCP 474 DOE amendment procedure. The amendment can relate back ...

Excerpt: ...mended Complaint because plaintiff attached it to the earlier complaint. (Vanacore & Associates, Inc. v. Rosenfeld (2016) 246 Cal.App.4th 438, 446.) The court does not consider the facts in the declaration of Muse Favacho. The court considers it only as a suggestion of how plaintiff might amend the complaint. On 3/6/16 Muse Brands entered into a contract with Chloupek as COO of BAS Research concerning a brand identity for BAS Research. Muse Brand...

Excerpt: ...plaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing." Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645, states that the court should read the 60 day limit in light of the "purpose of reso...

Excerpt: ...).) Plaintiff claims that when the complaint was filed on 9/25/20 it was owed $94,154.36 in back rent and that as of 9/30/21 (eight months after the hearing) the defendants will owe an additional $88,111.29 in additional rent, for a total amount of $182,265.65. Plaintiff seeks to attach the property of Balwinder Virk, Kulwinder Kaur, Gian Chand, Rakshi Rani AKA Raksha Rani, Nawab's Kitchen, Inc., Rewa Kumar, and Gurwinder Singh. The amount. The a...

Excerpt: ...demnity; 2) contribution; 3) declaratory relief; and 4) express indemnity. On February 26, 2020, Plaintiff Jason Ryan Kelly ("Plaintiff") settled his claims against all named Defendants in this matter. In the order of 9/18/20, the court found that each defendant agreed to bear their own costs and fees, in exchange for plaintiff's offer to dismiss his claims against them with prejudice. Defendants Sharifi, Lam, H&H Courier and East Bay Courier eac...

Excerpt: ...d opposition brief the separate statements of each party, and the authorities submitted by counsel, as well as counsel's oral argument, the Court hereby orders that Brightouse's motion for summary judgment against Plaintiff is DENIED because triable issues of fact remain on at least some of the causes of action stated in the Complaint. Summary adjudication is DENIED as to Plaintiff's first cause of action for breach of contract, on the ground the...

Excerpt: ...final time this motion will be continued. Plaintiff shall file and serve a substantive opposition to this motion by January 6, 2021, and the City of Berkeley shall file and serve a reply by January 15, 2020." Plaintiff has not filed a substantive opposition to this motion. The Court construes Plaintiff's failure to file any substantive opposition to this motion as conceding the validity of the arguments and evidence presented therein and abandoni...

Excerpt: ...tion based on both the purchase contract and the construction contract. Esau did not waive the contract right to seek arbitration under either contract. Plaintiff filed this case on 7/24/20 and Esau filed the motion to compel arbitration on 12/21/20. This was reasonably prompt. The motion under the purchase contract is GRANTED. Sharma and Esau were parties to the contract. The contract at para 22 has an arbitration clause. The clause has the mand...

Excerpt: ... vehicle had a warranty. The vehicle had a variety of defects, including with the Powernet electrical architecture. Defendant FCA was aware of some of the defense but failed to disclose them. The Complaint asserts claims (1) under the Song-Beverly Act (Civil Code 1793.2(D)); (2) under the Song-Beverly Act (Civil Code 1793.2(B)); (3) under the Song-Beverly Act (Civil Code 1793.2(A)(3)); (4) for breach of written warranty; (5) for implied warranty ...

Excerpt: ...ervises various court programs and supervised Marin Advocates for Children. In April 2016, Plaintiff applied for a job as Executive Officer at the Marin Advocates for Children. Plaintiff assets that McQuaid and J Roes disparaged her. Marin Advocates for Children offered the job to Plaintiff and Plaintiff accepted the job. McQuaid and J Roes continued to disparage Plaintiff. In early 2017, J Roes sued Marin Advocates for Children. Marin Advocates ...

Excerpt: ..., Plaintiff visited the gym as a guest, used the Ab Coaster, a weight came off the Ab Coaster, and the weight fell on plaintiff's foot. (SSUF 31-39.) First Amended Complaint filed 1/23/19, asserts claims for product liability and premises liability. EXPRESS ASSUMPTION OF THE RISK The Motion of defendant Planet Health Fitness for summary judgment is GRANTED based on express assumption of the risk. "A written release may exculpate a tortfeasor from...

Excerpt: ...e court held a hearing, heard from a representative of defendant Fellowship of Humanity and on 12/17/20 entered an order maintaining the temporary restraining order in effect and continuing the hearing till 1/7/21. PROCEDURE Fellowship of Humanity is alleged to be a domestic non-profit organization. (Cpt, para 15.) Fellowship of Humanity is not represented by counsel. Fellowship of Humanity has filed an opposition to the City's motion. A pleading...

Excerpt: ...do not require the winner to have a majority vote and provide for a runoff only in the event of a tie. Defendants present evidence that the practice before the March 2020 election was that ASI required a majority vote in elections. (Carroll Dec. para 7.) (DX B, pages 1, 3, 4) Defendants present evidence that before the March 2020 election the ASI informed plaintiff that the ASI required a majority vote in elections. (Carroll Dec. para 9-11.) (DX ...

Excerpt: ... purchased a 2013 Kia Optima (hereinafter the "Vehicle"). The Vehicle had a latent engine defect in the GDI engine. Defendant knew that the vehicle had the latent engine defect, and Defendant actively concealed the defect during and after the period of time the Vehicle was under warranty. On 6/2/16, the Wallis class action complaint was filed regarding the alleged latent engine defect in the GDI engine, and on 11/7/16, the Wallis case was dismiss...

Excerpt: ... leave to amend . On 11/4/16, defendants filed the Second Amended Cross-Complaint. On 11/28/16, plaintiff Gonzalez Ek filed the second anti-SLAPP motion to strike. On 2/10/17 the Court granted the second anti-SLAPP motion. The case went to trial. On 5/1/19, the court issued a statement of decision on Phase One, finding for defendants in some, but not all causes of action. On 3/9/20, plaintiffs filed the for attorneys' fees under the anti-SLAPP st...

Excerpt: ...para 7-8.) Various lawsuits ensued. (Cpt para 3, 12, 17.) The California Court of Appeal declared plaintiff to be a vexatious litigant. (RJN, Exh 6.) Plaintiff asserts that though all the litigation she was not told that a cause of her firing was an incident in June 2013 where she failed to report EKG results to the primary care nurse. On 3/20/19, Plaintiff submitted a Public Records Act request to AHS. On 4/24/19, plaintiff received a copy of a ...

Excerpt: ...mages and attorneys' fees from the 2AC is DENIED. (R-2201384) The motion of Save Mart to strike allegations of punitive damages and attorneys' fees from the 2AC is DENIED. (R-2204369) The motion of TKE to strike allegations of punitive damages and attorneys' fees from the 2AC is DENIED. (R-2204505) Plaintiffs must file a Third Amended Complaint on or before 1/8/21. Plaintiffs may pursue claims for negligence, premises liability, loss of consortiu...

Excerpt: ...notes from the trustee of the deceased Wife's trust. Defendant trustee of the deceased Wife's trust (which allegedly owes the money) served discovery on Plaintiff trustee of Husband's trust (which seeks the money). GENERAL ISSUES This is a breach of contract case. The claims in this case concern whether there were promissory notes, the terms of the notes, and whether there has been a breach of contract based on a failure to make payments. The onl...

Excerpt: ...19, Miranda complained about Landers to PRP's human resources and to Landers' managers. The complaints were for sexual harassment. (1AC, para 10-11; Benson Dec., para 11.) Miranda makes the complaints with unspecified malice. (1AC, para 14, 16.) Landers denies the alleged acts of harassment. (1AC, para 12; Landers Dec., para 3.) PRP's human resources conducted an investigation. (Benson Dec., para 12.) On 8/29/19, PRP terminated Landers's employme...

Excerpt: ...self. Plaintiff's First Amended Complaint does not mention any "utility metal cover" and does not allege that is what caused her to trip and fall. To the extent that Plaintiff may contend her accident was caused when she tripped on a "utility metal cover", rather than on the surface of the sidewalk itself, (1) Plaintiff cannot defeat summary judgment based on facts falling outside the scope of the claims asserted in the operative pleading (see, e...

Excerpt: ....) On 12/20/19, plaintiff sent a letter to proposed defendant CTS asserting claims and proposing settlement. On 1/28/20, plaintiff filed this case. On 3/2/20, defendant SMP filed an answer and also a cross complaint against CTS and SFA. On 7/9/20, proposed defendant CTS sent a letter to plaintiff seeking contractual indemnification under the contact between plaintiff and CTS. On 7/22/20, plaintiff sent a letter to proposed defendant CTS seeking c...

Excerpt: ...application for the policy and the delivery of the policy the decedent had been hospitalized, diagnosed with obstructive sleep apnea, and prescribed a nightly BiPAP machine, but that decedent did not disclose that information before the policy took effect. Defendant Brighthouse served discovery. The court held an IDC, but the parties were not able to resolve their disputes. SPECIAL INTERROGATORIES Defendant Brighthouse served at least 70 special ...

Excerpt: ...ary 2021 and again noted neither party had posted the fees. Plaintiff subsequently paid the fees on January 10, 2020, the day after the CMC. Defendant now argues that Plaintiff's untimely payment the fees should deprive Plaintiff of a jury trial pursuant to C.C.P. 631. Section 631, provides that "[t]he right to a trial by jury ... shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f). A...

Excerpt: ...established the Dawan-Dillard Almond Orchard Partnership (the "Partnership"). (Id.) Plaintiff and Decedent farmed the land and monetized some of the resources available from the land as joint owners and operators. (Id.) When Mr. Dillard ("Decedent") passed away in October 2001, Plaintiff became sole living owner of the land and partnership. (Id.) Ms. Lonnie Dillard, Decedent's daughter, was appointed as the administrator of Estate. (Id., para. 12...

Excerpt: ...to Rogala's Cross-Complaint. Specifically, the Court sustained the Demurrer to the First, Second and Fourth Causes of Action as barred by the one- year statute of limitations. (Business and Professions Code sec. 340.6.) The Court granted Rogala leave to amend these claims. The Court overruled the Demurrer to Rogala's Third and Fifth Causes of Action (breach of fiduciary duty claims), and the Sixth Cause of Action (fraud). Finally, the Court susta...

Excerpt: ...he interests of the LWDA in civil enforcement are defended and that the settlement is fair, adequate, and reasonable under all the circumstances. (See O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1133; see also Gov't Code § 12652(e)(2)(B) [requiring False Claims Act qui tam settlements be "fair, adequate, and reasonable under all the circumstances"].) The Court therefore takes guidance from the context of class action...

Excerpt: ...OE PSEUDONYM Filing a complaint under a pseudonym such as "John Doe" impairs the public's right of access to court records (CRC 2.550(c)). It also violates the statutory requirement that a complaint include "names of all the parties" (CCP § 422.40). Therefore, plaintiffs are not permitted to use a pseudonym absent "exceptional circumstances." (Doe v. Lincoln Unified School Dist (2010) 188 Cal.App.4th 758, 767.) Adopting the Ninth Circuit standar...

Excerpt: ... Oakland was negligent in that the crosswalk was unsafe and lacked pedestrian safety beacons. The Complaint in this matter was filed on January 18, 2019, naming as Defendants the City of Oakland and Jimenez (among others). The Parties engaged in discovery, including taking the deposition of Jimenez. (Decl. of Martin Zurada, paras. 3, 4.) Plaintiff determined that Jimenez's insurance policy limit was $525,000, and that Jimenez had no significant a...

Excerpt: ...laintiff served the discovery requests at issue in this Motion on July 25, 2019. Plaintiffs request production of documents related to Defendant's policies and practices. In addition, Plaintiffs sought the contact information of other nonexempt employees; their job positions and information regarding Defendant's corporate structure. The Parties participated in an Informal Discovery Conference ("IDC") on July 14 and 16. The Court cited to Williams...

Excerpt: ...it." (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047, citing Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) This policy is so strong that it is held to be "an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment." (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Prejudice exists where the amendment would require delaying the trial, would result in los...

Excerpt: ...OOT. This matter arises from a motor vehicle accident. The First Amended Complaint, filed on July 30, 2018, alleges a single cause of action for negligence against Defendant Express Messenger Systems, dba OnTrac ("OnTrac") and each of the above-named Defendants. On October 9, 2019, OnTrac filed a Cross-Complaint against the above-named Defendants, alleging causes of action for: 1) equitable indemnity; 2) contribution; 3) declaratory relief; and 4...

Excerpt: ...there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists...." (Bay Area Ra...

Excerpt: ...tate a cause of action or discloses a complete defense." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Goncharov v. Uber Techs., Inc. (2018) 19 Cal.App.5th 1157, 1165.) This ...

Excerpt: ...8 Plaintiff and Defendant Riley entered into a written settlement agreement. (RJN, Exh. A.) On August 29, 2019 the Court granted a motion brought by Plaintiff to compel enforcement of the settlement agreement. (C.C.P. sec 664.6.) DEFAULT ON APPEAL Mr. Riley filed a notice of appeal on October 9, 2019 and on October 28, 2019 a Notice of Default on Appeal issued for failure to designate the record. On February 20, 2020, the First Appellate District...

Excerpt: ...d that Ms. Colbert must retain an attorney to represent the Trust. In support of this argument, Defendants cite to Ziegler v. Nickel (1998) 64 Cal.App.4th 545 and Hansen v. Hansen (2003) 114 Cal.App.4th 618. Ms. Colbert contends she need not retain an attorney to represent the Trust, and that Hansen and Ziegler are distinguishable. (See Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519-1520.) The Aulisio court observed that Hansen and Ziegler...