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 ...