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...