Excerpt: ...t made the required affirmative showing of good cause necessary to continue the trial date. (See Cal. R. Ct., Rule 3.1322(a) ["[T]he dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain."]; Cal. R. Ct., Rule 3.1322(c) ["[C]ontinuances of trials are disfavored[.]"].) Among other things, the present trial date in this action was set on April 17, 2019, and Defendants have not demonstrated to ...

Excerpt: ... 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."].) "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...

Excerpt: ...d requiring off-the-clock work. (See, e.g., Complaint, paras. 60, 61.) Plaintiff's Complaint alleges a single cause of action under the Private Attorneys General Act ("PAGA"). Plaintiff's Complaint is brought on behalf of herself, other aggrieved employees, and the State of California. Plaintiff's Complaint seeks civil penalties, attorney fees, and interest from Defendants. (See Complaint, para. 33.) Plaintiff's Complaint does not seek any indivi...

Excerpt: ...se." (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.) DEMURRER Defendants demur to each of the FAC's two causes of action brought against the demurring Defendants. The court notes that although the caption on Plaintiff's SAC enumerates three causes of action, the body of the SAC contains onl...

Excerpt: ...of consortium. The Complaint also demands punitive damages. Four of the Complaint's causes of action are brought against the moving Defendant: negligence, strict liability, negligent misrepresentation, and fraud by nondisclosure. Defendant now seeks to summarily adjudicate the causes of action for negligent misrepresentation and fraud by nondisclosure. Defendant also seeks to summarily adjudicate Plaintiffs' request for punitive damages. Defendan...

Excerpt: ... 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."].) "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 actio...

Excerpt: ...ions 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 reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in te...

Excerpt: ...wever, the Court is not convinced that satisfactory amendment in regards to punitive damages is not possible. Accordingly, as to the Moving Defendants, the motion to strike is GRANTED WITH LEAVE TO AMEND. Plaintiffs must file an amended complaint no later than January 2, 2020. "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: . . . [s]trike out any irrelevant, false, or improper matter inserted ...

Excerpt: ...ding actively discouraging meal breaks, and requiring off-the-clock work. (See, e.g., Complaint, paras. 60, 61.) Plaintiff's Complaint alleges a single cause of action under the Private Attorneys General Act ("PAGA"). Plaintiff's Complaint is brought on behalf of herself, other aggrieved employees, and the State of California. Plaintiff's Complaint seeks civil penalties, attorney fees, and interest from Defendants. (See Complaint, para. 33.) Plai...

Excerpt: ...t made the required affirmative showing of good cause necessary to continue the trial date. (See Cal. R. Ct., Rule 3.1322(a) ["[T]he dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain."]; Cal. R. Ct., Rule 3.1322(c) ["[C]ontinuances of trials are disfavored[.]"].) Among other things, the present trial date in this action was set on April 17, 2019, and Defendants have not demonstrated to ...

Excerpt: ... face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 438(d).) A defendant may only make this motion if "the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired." (CCP § 438(f)(2).) While Code of Civil Procedure section 438 includes various time limits for raising the motion, it is generally understood th...

Excerpt: ...rch or theories, which is never discoverable], is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." Here, the parties agree, or at least do not actively dispute, that the purported surveillance video of June 9, 2018, which was taken at the direction of Defendants' attorneys as part of their preparatio...

Excerpt: ...e section 473(b). (See CCP sec. 473(b) ["The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect [and such application] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."...

Excerpt: ...mplaint is DENIED. DEMURRER Cross-Defendants have demurred to the Cross-Complaint's sixth cause of action for "tort of another," and only to that cause of action. "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.) ...

Excerpt: ... 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 reasonably can be inferred from those expressly pleaded and matters of which judicial not...

Excerpt: ...ndment of any pleading. . . ." (CCP 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 Oakland Unified's proposed amendment is to add to the FACC as cross- defendants: (1) Gateway Insurance Company, Inc., doing business as Alano Insurance Company, Inc. ("Alano"), and (2) Michael G. Jordan, an individual. Alano is allegedly an insurer who has or had a ...

Excerpt: ...led until it is updated to comply with this Court's prior orders. Plaintiff received leave to amend her Complaint, and indeed was ordered to do so, pursuant to the demurrer and motion to strike of Defendant Burger King Corporation ("BK"), which were set for hearing in this Court on June 6, 2019. The First Amended Complaint that Plaintiff proposes as part of the present Motion, which she prepared prior to the hearing date on BK's demurrer and moti...

Excerpt: ...ode section 3294(b), as discussed below. Should Plaintiff find it appropriate to add additional causes of action to help support its claims for punitive damages, that is permissible under this order; however, without a separate order from the Court, Plaintiffs may not add causes of action unrelated to punitive damages or new defendants. This action arises out of an alleged incident that occurred at a construction site at 3093 Broadway in Oakland,...

Excerpt: ...this matter . . . and must motion the court to dismiss without prejudice." Dismissal of the Entire Action without prejudice was entered on May 8, 2019. Based on the foregoing, Defendant's motion to compel is DROPPED. Defendant's request for monetary sanctions is DENIED. Even if the request for sanctions could survive the dismissal of the entire action, which Defendant has not argued, the Court finds the circumstances of the dismissal, which was s...

Excerpt: ...ndant County's demurrer to Plaintiff's First Amended Complaint ("FAC") on January 24, 2019 and granted leave to amend within 10 court days "following service of th[e] order as modified for method of service by CCP section 1013." (Order Sustaining Demurrer of 1/24/2019, p. 4.) The Order was then served by mail on February 7, 2019. (See Dec. Serv. By Mail re: Order After Hearing Re: of 1/24/2019, dated 2/7/2019.) In addition, Defendant County serve...

Excerpt: ...r the permitted time expired, and failed to provide the Court with a valid reason for the delay. Defendant has submitted evidence that Plaintiffs failed to timely file their FAC after Defendant's demurrer to the SAC was sustained, filing the FAC at least one week too late. (See Barlev Dec., para. 9; Def.'s Memo., p. 2:13- 20.) In response, Plaintiffs do not argue the FAC was timely filed, but instead attempt to persuade the Court to use its discr...

Excerpt: ...ear to have complied with this Court's Case Management Order of April 27, 2018 to utilize best efforts to obtain new counsel. Defendant failed to appear with counsel at the Case Management Conference of June 14, 2018. Defendant failed to appear at all at the Case Management Conference of October 3, 2018. According to Plaintiff's evidence, Defendant has failed and refused to provide available deposition dates for Defendant's chief executive. Defen...

Excerpt: ...e action." (CCP sec. 428.50(c); see also CCP sec. 428.10 [setting forth the types of causes of action that can be asserted in a cross-complain].) Here, the interests of justice do not support allowing Defendant to file a cross- complaint at this time. Defendant seeks to add third parties to the action as cross- defendants. (See Exh. A to Tong Dec.) "A greater showing of 'interest of justice' is required to obtain leave to file a cross-complaint a...

Excerpt: ...r the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code sec. 1794(a).) "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover...

Excerpt: ...r the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code sec. 1794(a).) "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover...