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...