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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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 ...