Excerpt: ...ff was hospitalized. (Id. para. 9.) Dr. Lai wanted to perform an angiogram procedure on Plaintiff. (Id.) Plaintiff alleges he initially refused the test and informed Dr. Lai that Plaintiff's wife was the "decision-maker." (Id.) Plaintiff alleges that Dr. Lai "waited until there [were] no family members or friends near" and obtained Plaintiff's consent to proceed. (Id.) During the angiogram, Plaintiff alleges Dr. Lai pierced his right femoral arte...

Excerpt: ...Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the fa...

Excerpt: ... LLC (collectively "Defendants") engaged in a pattern and practice of Labor Code violations. MEET AND CONFER EFFORTS As an initial matter, Defendant contends (in an Ex Parte Application) that Plaintiff failed to follow mandatory procedures by obtaining a date for and participating in an Informal Discovery Conference ("IDC") as required by the Code of Civil Procedure and Local Rules. (C.C.P. secs. 2016.040, 2016.080; Local Rule No. 3.31.) The Cour...

Excerpt: ...ies in their briefing, including enlarged discussions of Huff v. Securitas Security Services USA, Inc., infra, and Williams v. Superior Court, infra. The supplemental briefs do not alter the outcome of the Motion. Plaintiff's Complaint consists of a single cause of action for violation of the Private Attorney General's Act ("PAGA"). Plaintiff brings her claim on behalf of herself and all other "aggrieved employees." Plaintiff has propounded Speci...

Excerpt: ...nable to "plead around" the SOL defense and therefore granted Plaintiff leave to amend. Plaintiff filed her First Amended Complaint on January 28, 2020. The FAC contains all the essential allegations of the Complaint, but includes argument regarding Code of Civil Procedure section 1010.6(b)(3) in an attempt to render her claims timely filed. Because the Court finds these new allegations insufficient to overcome the SOL defense to Plaintiff's clai...

Excerpt: ...band, Mathieu Leonelli, witnessed the accident. Villegas was the primary care provider for her newborn. LEGAL STANDARD A defendant moving for summary judgment meets its burden of proof of showing that a cause of action has no merit if that party shows that ... 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 ...

Excerpt: ... 2019. However, Petitioner Nelia Hernandez ("Petitioner") - Decedent's mother -- was not informed of the details of the accident, including the cause of her son's death, until approximately October 25, 2019. Upon learning that Decedent had sustained fatal injuries after being struck by a BART train, Petitioner filed an application for leave to submit a late claim. Her application was denied on December 12, 2019. Petitioner now seeks relief to fil...

Excerpt: ...th Asian, became Plaintiff's co-supervisor, along with Harden. (SSUMF No. 4.) On July 13, 2016, Plaintiff was in a meeting with Tarin and fulfillment manager Kevin Costello. It is undisputed that during the meeting, Tarin stressed the importance of punctuality for all employees and also announced Plaintiff's shift time would be changing from 7:30 am to 9:00 am. (SSUMF No.5.) It is further undisputed that Plaintiff was frustrated by the meeting an...

Excerpt: ...lleges the defects inherent in the clamps were well-known to those in the construction industry. In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or mal...

Excerpt: ...at the project. Plaintiff OUSD filed this action against Cal-Pac on February 17, 2017. Cal-Pac filed a Cross-Complaint against La Paz and other subcontractor parties, on May 1, 2017. INTERSTATE'S APPLICATION FOR GOOD FAITH SETTLEMENT "Any party to an action in which it is alleged that two or more parties are joint tortfeasoror co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into...

Excerpt: ... Decl., para. 10, Ech. C.) Thereafter, Plaintiff mailed Defendant monthly statements. (Rowe Decl., Exh. C.) Plaintiff asserts that on or about March 9, 2016, Plaintiff ceased making payments towards her balance. ((Rowe Decl., para. 12.) Plaintiff contends the balance due and owing on Defendant's account is $13,846.27. (Complaint, para. 10.) Plaintiff's verified Complaint, filed on July 22, 2019, pleads causes of action for: 1) breach of contract;...

Excerpt: ...t 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. section 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 ...

Excerpt: ...AA Insurance Group as attorneys for the defendant in the Contra Costa case. Later that year, Morgan became attorney of record for Martinez, and Plaintiffs filed a notice of lien in that case. Sometime thereafter, counsel in the Contra Costa case reached a settlement and in 2013 they filed motions to enforce settlement and expunge Plaintiffs' liens. Those motions were granted by Judge Judith Craddick on February 4, 2014. Plaintiffs (who were not p...

Excerpt: ...AA Insurance Group as attorneys for the defendant in the Contra Costa case. Later that year, Morgan became attorney of record for Martinez, and Plaintiffs filed a notice of lien in that case. Sometime thereafter, counsel in the Contra Costa case reached a settlement and in 2013 they filed motions to enforce settlement and expunge Plaintiffs' liens. Those motions were granted by Judge Judith Craddick on February 4, 2014. Plaintiffs (who were not p...

Excerpt: ..., individually, as Executor of Decedent's Estate and as Successor in Interest of Decedent; Peter Marinakis, individually and as Successor in Interest of Decedent; and Lee Marinakis, individually and as Successor in Interest of Decedent. Plaintiffs' plead causes of action for: Negligence - Wrongful Death; Negligence - Survival Action; Neglect and Abuse (under the Elder Abuse and Dependent Adult Civil Protection Act); and Violations of Business and...

Excerpt: ...ship of the Property for Client. At the time Plaintiff and his Client signed the fee agreement, Client also executed a grant deed to Plaintiff for the one-sixth interest in the Property, which Plaintiff was to hold until such time as his Client received title to the Property. Plaintiff, on behalf of Client and himself, recorded a lis pendens against the Property. Client ultimately obtained an ownership interest in the Property by means of a settl...

Excerpt: ...hip of the Property. At the time Plaintiff and his Client signed the fee agreement, Client also executed a grant deed to Plaintiff for the one-sixth interest in the Property, which Plaintiff was to hold until such time as his Client received title to the Property. Plaintiff, on behalf of Client and himself, recorded a lis pendens against the Property. Client ultimately obtained an ownership interest in the Property by means of a settlement agreem...

Excerpt: ...ship of the Property for Client. At the time Plaintiff and his Client signed the fee agreement, Client also executed a grant deed to Plaintiff for the one-sixth interest in the Property, which Plaintiff was to hold until such time as his Client received title to the Property. Plaintiff, on behalf of Client and himself, recorded a lis pendens against the Property. Client ultimately obtained an ownership interest in the Property by means of a settl...

Excerpt: ...hat he, as an assignee of Romero and Sons Construction, Inc. ("Romero") is entitled to $120,000 for unpaid services that Romero performed on the construction project under a subcontract Romero had with Vila. Because the County has no interest in the funds in dispute, the County filed a Cross-Complaint in Interpleader seeking to resolve the conflicting demands of Vila and Schmidt. The County also deposited $150,000 with the Court, which amount rep...

Excerpt: ...one Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (CCP §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies which they ha...

Excerpt: ...ther 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 defense. (Id.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable tri...

Excerpt: ...ions, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (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 p...

Excerpt: ...ther 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 defense. (Id.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable tri...

Excerpt: ...runs through roughly the middle of the driveway. Plaintiffs allege that in 2015, Defendants constructed porches and porch steps that block part of the driveway, prohibits access to Plaintiffs' garages in the rear of the building. Plaintiffs also allege that Defendants blocked the use of the driveway by depositing construction debris there. Plaintiffs contend Defendants' tenants have used the shared driveway as a "patio" by placing tables and chai...

Excerpt: ...st St. Francis, Weiss Law, Roia Shefayee and Mogeeb Weiss ("Cross-Defendants"). The sole cause of action in the Complaint is for declaratory relief: St. Francis seeks a declaration that Bhandari unlawfully withdrew funds from the St. Francis bank accounts in violation of the Management Services Agreement ("MSA"). The MSA is an agreement between St. Francis Medical Group and St. Francis Medical Management. Neither Bhandari, nor the other Cross-Def...

Excerpt: ... of emotional distress ("IIED"), loss of consortium and fraud. LEGAL STANDARD "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that ...

Excerpt: ...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.) Plaintiff's Complaint consists of a single cause of action for violation of the Private Attorney General's Act ("PAGA"). Defendant asserts judgment on the pleadings is proper because: 1) Plaintiff failed to exhaust her administrative remedies by providing "proper" legal notice to the Labor Workforce Devel...

Excerpt: ...tent engine defect, which was known to Defendant, and that Defendant actively concealed the defect during and after the period of time the Vehicle was under warranty. Plaintiffs' claims against Defendant arise under the Song-Beverly Act and the CLRA, and include a cause of action for fraud. LEGAL STANDARD "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 99...

Excerpt: ...eaches of the construction agreement, and those matters are set for trial on August 3, 2020. Cook's asserts the construction agreement contains several provisions exculpating Gotham from liability. Cook's contends the agreement is a contract of adhesion, unfairly one-sided and unenforceable (in whole or in part) as against public policy. (See Civil Code section 1668.) Cook's further asserts the issue of enforceability is one for determination by ...

Excerpt: ...ioner's Writ, including the caption, in which Petitioner is referred to as "John Doe." USE OF DOE 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. L...

Excerpt: ...aintiff to submit all disputes to arbitration in Georgia. Plaintiff does not dispute that the Parties' agreement contains a mandatory arbitration provision. Rather, Plaintiff asserts the arbitration agreement's forum selection clause is unenforceable and that Plaintiff's PAGA claims are not susceptible to arbitration under governing California law. FORUM SELCTION CLAUSE The forum selection clause in the Parties' arbitration agreement requires all...

Excerpt: ... of rescission of the Parties' 2013 Agreement. KaiserAir now argues the SAC is susceptible to judgment on the pleadings because the Parties' contractual relationship was rescinded as a matter of law, and such rescission eliminated the bases for all of DI's causes of action in the SAC. DI contends it never offered to rescind the 2013 Agreement and its prayer for rescission was an alternative and conditional offer to rescind the Parties' "Proposed"...

Excerpt: ...on or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 12...

Excerpt: ...on or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 12...

Excerpt: ...ther, 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.) A demurrer for uncertainty is strictly construed because ambiguities of pleading can be resolved through modern discovery procedures. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will ...

Excerpt: ...ause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials C...

Excerpt: ...ause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials C...

Excerpt: ...s alleged in the pleading are deemed to be true, however improbable they may be." (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.) NEGLIGENCE (FIRST CAUSE OF ACTION) Chase's Demurrer to the First Cause of Action is SUSTAINED. Plaintiff conce...

Excerpt: ...laintiff'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 f...

Excerpt: ...) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "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 Mate...

Excerpt: ... the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of the proceeding[.]" (Hirsa v. Superior Court (1981) 1...

Excerpt: ...state a cause of action. (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.) Cross-Complainants Clayton E. Swartz, Haeng Cha Swartz and JHK Common, Inc. (collectively the "Swartz's) urge the Court to find Cross-Defendant's Motion untimely under the provisions of California Code of Civil Procedure section 438. Section 438 was enacted in 1994, but a non-statutory motion for judgment on the pleadings predated the statutory motion. As discuss...

Excerpt: ...s entitled "to cross-complain against entities not originally parties to the action [if] there is a sufficient subject matter connection between the action and the cross-complaint." (See Santa Barbara Channelkeeper v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1186 [explaining permissive cross-complaint procedure]; Code Civ. Proc. § 428.50(c).) Plaintiffs filed a Complaint on 10/26/18, alleging causes of action related to wrongful evic...

Excerpt: ...es "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reaso...

Excerpt: ...Cotter. On October 31, 2019, Ontrac noticed the deposition of H&H's PMK for December 15, 2019. At the time, this matter was set for trial on December 16, 2019 and the date for discovery cut-off was November 16, 2019. The deposition was thus timely noticed for a date prior to the discovery cut-off. After the initial deposition notice was served, counsel for Ontrac and Erin Murphy, an attorney from Farmer Case & Fedor (one of the two firms represen...

Excerpt: ...n to extend the time to demur in furtherance of justice and on any proper terms. (Cal. Code Civ. Proc. § 473(a)(1).) Good cause for the extension must be shown, and the extension may not exceed "an additional" 30 days without the adverse party's consent. (Cal. Code Civ. Proc. § 1054(a).) Plaintiff filed his Complaint for breach of contract and waste on 6/26/19. Defendant filed no responsive pleading until this Demurrer was filed on 11/7/19. An ...

Excerpt: ...t readily ascertainable. Plaintiff has indicated he is not seeking prejudgment interest from Defendants BWR and McKeiver, and would have so stipulated if Defendants had raised the issue through the meet and confer process. Accordingly, Defendants' motion to strike the prayer for prejudgment interest as to Defendants BWR and McKeiver only is GRANTED. Defendants next move to strike Plaintiff's prayer for emotional distress damages (FAC, Prayer for ...

Excerpt: ...a Cross Complaint, alleging causes of action for violation of the Consumer Legal Remedies Act and violations of the California Business and Professions Code. In her Cross-Complaint, Bryant sought public injunctive relief. (First Amended Cross Complaint ("FACC") at p. 21, ¶ 5.) On 4/17/18, Gimbal filed a motion to compel arbitration and to stay this action. This Court granted Gimbal's motion on 7/12/18 and compelled both Parties to submit "all of...

Excerpt: ...he Colemans only); 4) nuisance; 5) intentional infliction of emotional distress; 6) tenant harassment in violation of the Oakland Rent Ordinance section 8.22.600; 7) violation of the Oakland Tenant Move Out Agreement Ordinance; 8) failure to provide reasonable accommodation in violation of the Fair Employment and Housing Act (as against the Colemans, Bozeman and McKeiver only). The FAC alleges that the Colemans, Quincy Bozeman and Forrest McKeive...

Excerpt: ...ec. R. Lee, paras. 4-6.) In 2014, Decedent began to insist that Defendant repay her certain amounts that she had provided to him at some point in the past. (See Dec. R. Lee, paras. 10-12; Dec. J. Jacobs, paras. 7-8.) The parties provide no clear written record of when these funds were distributed to Defendant, and the fundamental nature of the transfer is disputed. Plaintiff provides evidence the funds were a gift in the amount of $40,000.00, and...

Excerpt: ...en deciding whether to approve a settlement agreement."].) California follows a two-stage procedure for court approval: first, the Court reviews the form of the terms of the settlement and form of settlement notice to the class and provides or denies preliminary approval; later, the Court considers objections by class members and grants or denies final approval. (CRC, Rule 3.769.) Here, the Court granted preliminary approval on September 17, 2019...

Excerpt: ...in the motion) alleges that within the last four years Defendant Trina D Harris ("Defendant") became indebted to Plaintiff on an open book account for money due, and Count 2 (referred to as the "2nd Cause of Action" in the motion) alleges that within the last four years Defendant became indebted to Plaintiff because an account was stated in writing between the parties in which it was agreed that Defendant was indebted to Plaintiff. (Complaint, pa...

Excerpt: ...nce is necessary to prevent prejudicing the party's interest in the litigation." Here, Plaintiff has provided evidence that she is over 70 years of age and that she has a substantial interest in the action as a whole. However, Plaintiff has made no showing, or even provided any argument or discussion that Plaintiff's "health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation." (CCP sec. 36(a).) Ac...

Excerpt: ... sec. 576.) The policy favoring leave to amend is strong. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760-761.) Here, the main purpose of Plaintiffs' proposed amendment is to provide more detailed factual allegations, add new causes of action, and add Pacific Plaza Community Association and its property managers as defendants. Trial in this matter has not yet been scheduled. The motion is unopposed. (See A.N. v. County of Los Angeles (...

Excerpt: ...ction 25249.7, in that: (A) the standards required by the CJ complies with Health and Safety Code sections 25249.6 and 25249.10(c); (B) the warning required by the CJ is clear and reasonable in compliance with Health and Safety Code section 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $16,035.89 to be paid pursuant to the CJ is r...

Excerpt: ...tiff's motion cannot be granted for several reasons, both substantive and procedural. Initially, Plaintiff is not clear regarding the statutory basis for its motion. In its notice of motion, Plaintiff cites a discovery statute, but this is not a discovery motion. Plaintiff also cites Code of Civil Procedure section 128.5, but Plaintiff has not followed the predicate procedural steps necessary to bring such a motion. Plaintiff also string-cites ov...

Excerpt: ...n, but is unclear].) Further, to the extent Plaintiffs seek to add a tort cause of action for emotional distress to the complaint based on the same facts as their breach of contract cause of action, doing so is generally impermissible. (See Erlich v. Menezes (1999) 21 Cal. 4th 543, 551 ["[C]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law."]...

Excerpt: ...ll parties and their counsel must regard the date set for trial as certain."]; CRC, Rule 3.1322(c) ["[C]ontinuances of trials are disfavored[.]"].) Among other things, the trial date in this action was set on October 2, 2018, and Ontrac has not demonstrated to the Court's satisfaction that it has been unable, or will be unable, despite diligent efforts, to complete essential discovery prior to the cutoff date or to prepare for trial. (See CRC, Ru...

Excerpt: ...ras. 21, 22.) As alleged, Plaintiff followed Wells Fargo's instructions. (See FAC, para. 22.) Regardless, Wells Fargo completed a foreclosure on Plaintiff's home. (See FAC, para. 3.) These allegations are sufficient to maintain Plaintiff's causes of action against Wells Fargo. Wells Fargo's argument in favor of its demurrer hinges largely on the perceived unreasonableness of Plaintiff's actions. (See Def.'s Memo., p. 12:8-19 [arguing Plaintiff's ...

Excerpt: ...dacted version of the final arbitration award is ORDERED filed. While it perhaps would have been in the interests of all involved for Defendant to have acted sooner, the Court nonetheless finds that, in submitting its proposed final arbitration award at the same time as its opposition to this motion, Defendant has acted in substantial compliance with this Court's Order of March 20, 2019. The Court's Order provided no specific timeline for Defenda...

Excerpt: ...rties to calculate interest at 10% per annum. The arbitrator's final award was confirmed by the Court on March 20, 2019. With this motion, the parties now seek to address the remaining issues of fees and costs, largely New Raja's fees and costs incurred after the final award was completed, in an effort to bring the case to a final judgment. Accordingly, New Raja's motion for an award of attorney fees and expenses is GRANTED IN PART as follows: AT...

Excerpt: ... of documents on the basis of "private property." (See Dec. K. Greene, para. 8, Ex. C.) However, Ms. Jiang's purported objection did not conform to the requirement s of section 1985.3 and is of no specific legal effect. Further, Ms. Jiang rebuffed Alvernaz's attempts to meet and confer regarding the issue. (See Dec. K. Greene, para. 10.) Substantively, the Court finds the right to privacy is not absolute, the documents sought by the subpoenas are...

Excerpt: ...h and Safety Code section 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $3,000.00 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health and Safety Code section 25249.7(b); and (E) and the allocation of any additional settlement payments to Plaintiff is in the public interest as set forth in Code of ...

Excerpt: ...o correct any defect has not been [previously] given."].) Plaintiff shall file an amended complaint no later than September 17, 2019. (See CRC, R. 3.1320(g).) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "As ...

Excerpt: ...the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 12...

Excerpt: ...ode of Civil Procedure section 1032(a)(4) provides that, for the purposes of costs under the section, a prevailing party "includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." The prevailing party for an award of costs under section 10...

Excerpt: ...e granted. (See CCP sec. 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] given."].) Plaintiff shall file an amended complaint no later than September 10, 2019. (See CRC, R. 3.1320(g).) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018)...

Excerpt: ...leges facts sufficient to state 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, however improbable they may be." (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 ...

Excerpt: ...].) Plaintiff shall file an amended complaint no later than September 5, 2019. (See CRC, R. 3.1320(g).) "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "As a general rule in testing a pleading against a demurrer...

Excerpt: ...n order. Gebre proceeded to trial on November 14, 2018, separate from the remainder of the consolidated cases. On May 1, 2019, in Gebre, the Court issued a Statement of Decision after trial ruling in Defendants' favor. The Court finds that entering judgment now in Gebre would not create the possibility of conflicting judgments with the consolidated cases. The issues to be determined at trial in the consolidated cases pertain to factual and legal ...

Excerpt: ...n order. Gebre proceeded to trial on November 14, 2018, separate from the remainder of the consolidated cases. On May 1, 2019, in Gebre, the Court issued a Statement of Decision after trial ruling in Defendants' favor. The Court finds that entering judgment now in Gebre would not create the possibility of conflicting judgments with the consolidated cases. The issues to be determined at trial in the consolidated cases pertain to factual and legal ...

Excerpt: ... to pursue a judgment against in this Court against Intellilum. (See In re Beeney (1992) 142 B.R. 360, 362-363.) As Intellilum has appeared in this action and had its previous default set aside, it is reasonable to believe Plaintiff might need to conduct some limited discovery to prepare evidence for trial, a motion for summary judgment, or some other procedural device to seek judgment against Intellilum. Accordingly, a request for discovery agai...

Excerpt: ...own, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) para. 8:1256, p. 8G-1.) As stated in Cembrook v. Superior Court, (1961) 56 Cal. 2d 423, and International Harvester Co. v. Superior Court, (1969) 273 Cal.App.2d 652, while "most of the discovery procedures are primarily to assist counsel to prepare for trial . . . [RFAs] are aimed primarily at setting at rest a triable issue so it will not have to be tried. " (Int'l Ha...

Excerpt: ...dants Oakland Unified School District, Kyla Johnson-Trammell, and William Newby's demurrer and motion to strike. Plaintiffs are directed to file one amended complaint addressing the concerns of both this order and the order of July 2, 2019. Defendants are, in turn, requested to coordinate their responses to the anticipated amended complaint, and to make best efforts to have any further demurrers or motions to strike heard on the same day. STANDAR...

Excerpt: ...use of action for negligence. (See, e.g., FAC, paras. 2, 17, 29, 33 ["Safeway knew or should have known about a hazardous condition and did nothing to fix the problem"], 41, 49 (A, B).) Further, Defendant admits a cause of action for negligence is not beyond the pale in this matter. (See Def.'s Demurrer Memo., p. 1:24-25 ["This is essentially an action for negligence which apparently arises from a claim of slip and fall at the Safeway store locat...

Excerpt: ...compliance with Health & Safety Code section 25249.6; (C) the reimbursement for fees and costs to be paid to Plaintiff's counsel pursuant to the CJ is reasonable under California law; (D) the civil penalty of $7,701 to be paid pursuant to the CJ is reasonable based on the criteria set forth in Health and Safety Code section 25249.7(b); and (E) and the allocation of any additional settlement payments to Plaintiff is in the public interest as set f...

Excerpt: ...ss is defined as: "All individuals who have worked at [any of eight] Restaurants owned by [Defendants] in the four years preceding October 23, 2018." (TAC, para. 21.) However, the named plaintiff, Ismael Mercado ("Plaintiff"), alleges he worked at only four of those eight restaurants, three for one to two days each, and one for two years. (See TAC, paras. 1, 8, 9.) Plaintiff alleges a "community of interest common to all class members" premised o...

Excerpt: ... to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (CCP sec. 1281.2; cf. 9 USC secs. 1 et. seq....

Excerpt: ... intrusive means. (See Liberty Mut. Ins. Co. v. Sup. Ct. (1992) 10 Cal.App.4th 1282, 1287-1289.) Here, Ms. Johnson-Trammell is the Superintendent of Oakland Unified School District. (See Ex. 3 to Dec. S. Eckstein.) This would qualify her as an apex employee or its equivalent. (See Liberty Mut. Ins. Co., supra, 10 Cal.App.4th at 1287-1289.) In failing to oppose this motion, Plaintiffs have not provided any evidence Ms. Johnson-Trammell possesses a...

Excerpt: ...ns appropriate. First, earlier filings in this action indicate Defendant has filed for bankruptcy protections. This is not addressed Plaintiff's moving papers and, thus, the Court is not informed as to whether the bankruptcy stay has been lifted as to the requested discovery, or if there is legal authority for proceeding even without a lift of the stay. Further, earlier filings in this action indicate Defendant is a forfeited or suspended corpora...

Excerpt: ...ale has had judgment entered in its favor and is not currently a party to this action. Accordingly, Plaintiff cannot proceed with a deposition against Scottsdale under the authority cited, at least without more evidence and argument for Plaintiff clearly explaining how it can. Further, portions of the case involving Scottsdale are presently on appeal, and it is not clear this Court retains jurisdiction to grant this Motion to Compel at this time ...

Excerpt: ... became indebted to Plaintiff on an open book account for money due, and Count 2 alleges that within the last four years Defendant became indebted to Plaintiff because an account was stated in writing between the parties in which it was agreed that Defendant was indebted to Plaintiff. (Complaint, para. CC-1(a).) In the instant motion, Plaintiff introduced evidence sufficient to meet its initial burden under Code of Civil Procedure section 437c(p)...

Excerpt: ...her to issue a preliminary injunction, the court weighs two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits; and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. The court's determination is guided by a mix of the potential merit and interim harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an in...

Excerpt: ...s Plaintiff's allegations that Defendant violated Civil Code section 1790 by failing to repair or repurchase Plaintiff's allegedly defective vehicle. (See Complaint.) In support of his claim, Plaintiff seeks discovery related to Defendant's knowledge of the specific problems that affected Plaintiff's vehicle. Plaintiff first propounded his discovery requests over one year ago. (See Memo. Sup. Mtn. re: RFPs, p. 2:6-8.) Plaintiff's present motions ...

Excerpt: ...action or proceeding." (CCP sec. 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact...

Excerpt: ...onsolidated for all purposes. IT IS FURTHER ORDERED THAT all future filings shall be in this action, Yue v. Alvernaz Partners, LLC, et al., Alameda County Superior Court, Case No. RG19014821. "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning p...

Excerpt: ...f filed her first lawsuit on or around February 28, 2013 in the Superior Court of California, County of Alameda as Case No. RG13669175 ("Initial Action"). In the Initial Action, Plaintiff alleged causes of action for violations of California Civil Code sections 2924(a)(6) and 2924c, negligence, breach of contract, misrepresentation, fraud, and elder abuse. Fannie Mae was awarded summary adjudication of several issues on March 26, 2015 and, after ...

Excerpt: ...no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue...

Excerpt: ...es of action within an action . . . if the party contends that the cause of action has no merit. . . ." (CCP sec. 437c(f)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "[T]he party moving for summary judgment bears an initial burden of production to mak...

Excerpt: ... the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. sec. 1281.2; see also 9 USC secs. 1 et. seq.) Plaintiff filed his Complaint on November 29, 2018 alleging various caus...

Excerpt: ...aintiff's Complaint, specifically allegations regarding punitive damages and certain attachments to the Complaint. Defendant's Motion to Strike is GRANTED IN PART WITH LEAVE TO AMEND. Plaintiff shall file an amended complaint no later than July 8, 2019. (See CRC 3.1320(g); see also Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previ...

Excerpt: ...ion asserting Defendant's counsel "has endeavored and continues to endeavor to provide the requested discovery despite lacking and inconsistent cooperation from [D]efendant." (Def.'s Opp., p. 1.) This is descriptive, but it is not an opposition based in the law. For Plaintiff's part, evidence has been offered that the discovery requests were served and Defendant did not respond completely to the requests, specifically noting Defendant has failed ...

Excerpt: ...imation of plaintiff's total recovery and the settlor's proportionate liability, the amount paid in settlement, . . . a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial, . . . the financial conditions . . . of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants." (Tech-Bilt, Inc. v. Woodward-Clyde ...

Excerpt: ...h cause of action for breach of the express warranty of merchantability. Defendant's Demurrer is SUSTAINED WITH LEAVE TO AMEND. As written, the Complaint's fifth cause of action fails to state a cause of action upon which relief can be granted. (See CCP § 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] ...

Excerpt: ...3.1700(b)(2).) Plaintiff's motion is GRANTED IN PART as follows: First, the Court does not find the memorandum of costs' entry for jury fees to be unreasonable and does not exercise any discretion to strike or tax such costs. Plaintiff has provided no evidence or even specific argument regarding why she feels this cost is too high. The case clearly went to trial, and no argument has been made that jury fees were not incurred. Absent more, the Cou...

Excerpt: ...tiff's attempts to purchase the subject real property. Specific performance of the real property purchase was the subject of a prior lawsuit also brought before the Superior Court of California, County of Alameda as Guinnane v. Peterson, RG17861212 (the "Specific Performance Action"). In the Specific Performance Action, of which Chess was not a party, Plaintiff was successful. Pursuant to Code of Civil Procedure sections 435(b)(1) and 436(a), Che...

Excerpt: ...mary judgment. LEGAL STANDARD "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP sec. 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4t...

Excerpt: ...ff Presented Sufficient Evidence to Support That Defendant Was Negligent." (Pltf.'s Memo., p. 4:12-14.) Plaintiff's framing makes it sound as though the Court could order a new trial simply because reasonable minds could differ on the question of negligence in this case. However, that is not the standard of section 657. Section 657 requires that "[a] new trial shall not be granted upon the ground of insufficiency of the evidence to justify the ve...

Excerpt: ...(1)(B).) "The grounds for [the] motion . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP sec. 438(d).) Here, Plaintiff's Complaint does not state facts sufficient to constitute a cause of action against Defendant. While nominally for breach of contract, the Complaint fails to provide sufficient information to understand the cause of action asserted. At one po...

Excerpt: ... reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied. (See Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68.) In her motion, Plaintiff argues that Defendant was negligent at the time of the accident because she violated one or multiple of Vehicle Code sections 21460, 22350, or 21801, which relate to crossing double yellow lines, speeding, and yielding, respectively. However, simp...