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