Excerpt: ...overnment Code section 820.2, "a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him...." BART moves to bifurcate the trial of its immunity defenses under section 845 and 820.2 from the trial of BART's liability. Under Code of Civil Procedure section 598, the court may order the trial of one issue to be held before the trial of any ...

Excerpt: ...s by appearing and arguing the merits of the motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Plaintiff contends that the motion was filed without a declaration and there are no exhibits. However, counsel has now filed a Declaration on Form MC-052, and there is no requirement for exhibits. Counsel has provided a sufficient basis to withdraw based on Plaintiff's failure to pay her monthly installment fees over a period of months. Plainti...

Excerpt: ...") of DEHP. Plaintiff asserts that Defendant's products as tested contained substantially more than 1,000 ppm of DEHP. Defendant also agrees to provide a warning if its reformulated products contain more than 1,000 ppm of DEHP. The parties have not reached agreement with regard to the presence of nickel and lead in Defendant's products, or Defendant's alleged failure to provide the required warning, so Plaintiff is deemed to have withdrawn the cl...

Excerpt: ...sul has not filed opposition to BART's motion for terminating sanctions scheduled for December 13, 2019. The ruling on the motion for terminating sanctions may moot this motion for summary judgment/summary adjudication. The motion for summary judgment against Plaintiffs Russell Stapp, Patricia Stapp, and Amanda Stapp (collectively "Plaintiffs" unless otherwise indicated) is DENIED. In this action, Plaintiffs allege that on April 22, 2017, they we...

Excerpt: ...ed Complaint without leave of court. Although a plaintiff may amend the pleadings once in response to a demurrer without obtaining leave of court, subsequent amendments require leave of court. (Code Civ. Proc., sec. 472; Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 578- 579.) For that reason, the Second Amended Complaint is deemed stricken. Although the demurrer to the First Amended Complaint is not mooted by the Second Amended Complaint, the ...

Excerpt: ...agreement, after the Hayward property is sold, the net proceeds shall be placed in an escrow account, and the Lathrop property will then be appraised. The parties agreed to use that appraisal to calculate the difference between the net proceeds of the Hayward property sale and the appraised value of the Lathrop property. Thus, Plaintiff seeks an order directing the Receiver to have a new appraisal done, and to use the new appraisal to calculate t...

Excerpt: ... Bay Co.'s claims for breach of contract and quantum meruit, and (4) for the return of $25,000 held in court escrow is ruled upon as follows: The request for the return of $25,000 held in court escrow is moot. On October 3, 2019, the court ordered that Tenants' funds held by the court pursuant to the court's previous order shall be released upon Tenants' request. The motion to vacate the dismissal entered on September 23, 2019, (and again on Octo...

Excerpt: ...e, sec. 1043(b)(3).) A showing of "good cause" under section 1043 is established if the party seeking records demonstrates through affidavits a "plausible factual foundation" for how the records are material to the subject matter of the pending litigation. Materiality is measured by relatively relaxed standards that serve to insure the production of all potentially relevant documents. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 655.) Defen...

Excerpt: ...suant to Code of Civil Procedure section 425.16(c)(1). In their moving papers, Defendants sought to recover $51,322.50, based on legal fees of $44,392.50, statutory costs of $1,800, and costs of $5,130 for the expert testimony of Benjamin Shatz. The motion is supported by the declaration of Benjamin J. Shatz, a Certified Specialist in Appellate Law, who is offered as an expert witness. He opines that the requested hourly rates of $150 for paraleg...

Excerpt: ...6.10(c), 426.30(a).) Pursuant to Code of Civil Procedure section 426.50, the court is required to grant a motion to plead a compulsory cross-complaint if the party seeking to leave to plead the cross-claim acted in good faith. Section 426.50 also specifically requires the court to liberally construe its provisions to avoid forfeiture of causes of action. Thus, where forfeiture would otherwise result, a motion to file a cross-complaint at any time...

Excerpt: ... Code sec. 432.7 from considering an unadjudicated criminal charge or a criminal charge which resulted in acquittal in determining any condition of employment, including hiring. Concentra contends that this new allegation is responsive to Plaintiff's contention that Concentra should have not hired Dr. Hafi, because it knew or should have known that Dr. Hafi was accused of criminal sexual battery following an incident on April 19, 2014, prior to h...

Excerpt: ...s governed by a Promissory Note, Deed of Trust, and Disposition and Development Agreement ("DDA"). RPII alleges that City of Oakland Redevelopment Successor Agency ("Agency") is the successor to ORA. Plaintiff alleges that the City of Oakland has acted through ORA and Agency with respect to the loan documents. The court will refer to the defendants collectively as "City" unless otherwise indicated. RPII alleges that it intends to sell a percentag...

Excerpt: ...sposition and Development Agreement ("DDA"). RPII alleges that City of Oakland Redevelopment Successor Agency ("Agency") is the successor to ORA. Plaintiff alleges that the City of Oakland has acted through ORA and Agency with respect to the loan documents. The court will refer to the defendants collectively as "City" unless otherwise indicated. RPII alleges that it intends to sell a percentage of its ownership interest in the Rotunda Building fo...

Excerpt: ...Company's Motion to Seal; (4) Declaration of Colin T. Kemp in Support of Victualic Company's Motion to Seal. On September 13, 2019, Victualic lodged the following unredacted documents under seal: (1) Reply Memorandum of Points and Authorities in support of Motion for Protective Order; and (2) Reply Declaration of Colin T. Kemp in support of Motion for Protective Order. On September 9, 2019, Defendants American Home Assurance Company, The Insuranc...

Excerpt: ...h the Court of Appeal's Unqualified Reversal. The court's ruling was based on its conclusion that the Court of Appeal's decision was an unqualified reversal, that there was nothing in the decision showing an intent to preserve the court's or the jury's determinations on any of Victualic's sixteen causes of action, and that the jury's verdict on the Fifteenth Cause of Action for Breach of Contract was not entitled to "collateral estoppel" effect. ...

Excerpt: ...d by it during the commission of a felony and it has not been convicted of any crime in connection with the alleged sexual assault by Defendant Baireddy. (Code Civ. Proc., sec. 37(a).) Assuming the court has discretion to set a preferential trial date for Plaintiff's claims against the Lyft Defendants if a preferential trial date is set for her claims against Defendant Baireddy, the court does not find that this is an appropriate case to do so. L...

Excerpt: ...r Negligent Hiring, Supervision and Retention is OVERRULED. In this case, Plaintiff alleges that on April 7, 2018, she consumed alcohol with friends and then requested a ride using the digital platform provided by Lyft Defendants. Plaintiff alleges that Defendant Baireddy provided transportation services on behalf of Lyft. Plaintiff alleges that in the course of providing transportation services for Lyft, Defendant Baireddy sexually assaulted her...

Excerpt: ... he was instructed to participate in the work. Plaintiffs allege that the work was ultrahazardous. Plaintiff alleges that Defendants failed to take appropriate precautions to protect Plaintiff from dangerous conditions of the premises, including the risks of electrocution and explosion. Plaintiff that he suffered personal injury. Plaintiff alleges that Defendants David Perez and DP Electric and others negligently owned, possessed, operated, contr...

Excerpt: ...by Defendant Baireddy. Plaintiff alleges that Baireddy was employed by Lyft. Plaintiff alleges that Lyft and its officers, directors, and managing agents were negligent in hiring drivers, because they fail to require drivers to attend training and Lyft's background check is inadequate. Plaintiff alleges that Lyft's conducted created a risk of sexual assault for passengers, but it failed to take action to eliminate that risk. Plaintiff alleges tha...

Excerpt: ... 2017. Plaintiff's supervisor was Defendant Martinez. Plaintiff is an African-American women. Plaintiff alleges that she was subject to harassment based on race and sex in violation of the Fair Employment and Housing Act ("FEHA"), and discrimination based on sex and race in violation of FEHA. Plaintiff alleges that Guess failed to prevent discrimination and harassment in violation of FEHA. Plaintiff alleges that when she complained, Defendants re...

Excerpt: ...t or omission of its current or former employee, the public entity may recover from the employee the amount of that payment if the employee acted with "actual fraud, corruption, or actual malice". The Regents contend that they had to pay claims against them asserted by four current or former students (collectively, "the four students") who alleged that they were sexually harassed by the Regents' former employee Wentworth. Wentworth first argues t...

Excerpt: ...motion is GRANTED. The undisputed facts establish that the Regents did engage in the legally required interactive process with Plaintiff after he first discussed the need for potential accommodations in February 2015. (See the Regents' Separate Statement Facts ("SSF") Nos. 21-93, Plaintiff's response, and the evidence cited in support.) Although Plaintiff purports to dispute many of those SSF, he does not cite any evidence demonstrating that he r...

Excerpt: ... pursuant to Government Code section 831.4. That section provides that a public entity is not liable for an injury caused by a condition of an unpaved road or a trail that provides access to "recreational or scenic areas". Whether the property on which the injury occurs is a trail depends on a number of considerations, including accepted definitions of the property, the purpose for which the property is designed and used, and the purpose of the i...

Excerpt: ...est of the real property that is the subject of this action. On September 12, 2014, Plaintiff filed a small claims case against Defendant and Fran Yeganeh (Case No. RG14-740333) in which admitted that he lost title to the subject property to a nonjudicial foreclosure and that he became a tenant of Defendant and Fran Yeganeh in 2012. Those allegations constitute judicial admissions, and Plaintiff is judicially estopped from alleging that he was th...

Excerpt: ...efforts as discussed below. In the opposition papers filed by Defendant FCA US LLC ("FCA") on August 22, 2019, FCA asserts that the motion is moot because, in a letter dated July 17, 2019, it agreed to submit specified search terms into its Customer Assistance Inquiry Records ("CAIR") database and thereafter review and produce responsive, non- privileged records, and that it would also review the pertinent CAIR records to identify the customer as...

Excerpt: ...proceedings therein as may tend to avoid unnecessary costs or delay." The decision to consolidate is within the broad discretion of the court. (See General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 92.) Where one of the lawsuits is an unlawful detainer action, however, the circumstances under which consolidation may be appropriate are limited. An unlawful detainer action is "summary in character ... ordinarily, only claims bearing direc...

Excerpt: ...porting memorandum sufficiently supplies such details such that Plaintiff has sufficient notice of the requested relief and the matter is properly before the court. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Further, though the memorandum has a typographical error in referring to the applicable statute, C.C.P. § 2024.050, the first two paragraphs of the argument section identify and quote from that statute, which is sufficient to ad...

Excerpt: ...n Williams ("Defendant") had not served any responses to these interrogatories, despite several reminders that the due date had passed, which resulted in his waiver of any objections to those interrogatories. (See C.C.P. § 2030.290(a).) In his opposition filed on August 14, 2019 (which is not accompanied by a proof of service), Defendant attaches verified responses to the interrogatories, containing objections and incomplete responses. Where res...

Excerpt: ...al connection between the negligent conduct and the resulting injury" and the "actual loss or damage resulting from the professional's negligence." (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) As currently pleaded, the cause of action is deficient in at least some of the above respects. Preliminarily, the cause of action does not comply with CRC 2.112, subdivisions (2), (3) and (4), by stating its "nature," the party or parties asserting it, or the ...

Excerpt: ...e categories in ruling on the motion. A. Discovery Potentially Relevant to Punitive Damages 1. RFAs The motion is DENIED as to RFAs Nos. 1, 2 and 7-9. Plaintiff International Currency Technologies ("Plaintiff") objected that these RFAs are not reasonably calculated to lead to the discovery of admissible evidence, which the court finds to be a valid objection. The court already excluded evidence of the trademark application and registration based ...

Excerpt: ...of Civil Procedure ("C.C.P.") section 391(b), subdivisions (1), (2) and (3). First, the records of which the court takes judicial notice show that Plaintiff, in propria persona, has filed and maintained at least five litigations in the last seven years that have been finally determined adversely to her. (See C.C.P. § 391.1(b)(1); Request for Judicial Notice ["RJN"] filed on June 28, 2019, Exhs. D through V, which is granted; Tokerud v. Capitolba...

Excerpt: ...where the "complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint." (C.C.P. § 438(c)(1).) Although Defendant filed a general denial to the complaint on February 22, 2019, the court issued an order on June 21, 2019, stating that "the matters set forth in the Requests for Admissions, Set No. 1, served on February 28, 2...

Excerpt: ...responses on May 3, 2019, and amended supplemental responses on July 8, 2019. In all three sets of responses, the responses to Nos. 26 through 34 contained only objections and no agreement to produce any responsive documents. (Decl. of Thomas Spielbauer, ¶¶ 3-14 and Exhs. 2, 4 and 7.) On July 19, 2019, Plaintiff sent a "meet and confer" letter as to asserted deficiencies in the amended supplemental responses. Ocwen did not respond to that lette...

Excerpt: ...responses on May 3, 2019, and amended supplemental responses on July 8, 2019. In all three sets of responses, the responses to Nos. 26 through 34 contained only objections and no agreement to produce any responsive documents. (Decl. of Thomas Spielbauer, ¶¶ 3-14 and Exhs. 2, 4 and 7.) On July 19, 2019, Plaintiff sent a "meet and confer" letter as to asserted deficiencies in the amended supplemental responses. Ocwen did not respond to that lette...

Excerpt: ... with WSC that required a contractor's license and that MPI did not have such a license. (FACC, ¶¶ 15-17.) WSC alleges that, pursuant to Business and Professions Code section 7031(b), WSC is thus entitled to recover all compensation paid to MPI as an unlicensed contractor. (Id., ¶ 18.) MPI's demurrer is based on the ground that this was a claim that was required to be brought as a compulsory cross-complaint in the prior action entitled Masterp...

Excerpt: ...pplicable theory. (See Easton v. Superior Court (1970) 12 Cal.App.3d 243, 245-246; Sequoia Pine Mills, Inc. v. Superior Court (1968) 258 Cal.App.2d 65, 67.) "[I]n the absence of an affirmative showing to the contrary, the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action." (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d...

Excerpt: ...y 26, 2019, that requires the "income and accumulations of income for each of the three properties" to be "held by the property managers and not distributed without prior order of the Court or written agreement of the parties and their attorneys." (See Decl. of Edward Ngow, Exh. 2, ¶ 4.) Defendant seeks to restore "50/50 monthly distributions [of such income] to the parties through the conclusion of this matter," on the ground that she is a "sin...

Excerpt: ...er is directed only to the portion of the cause of action alleging age discrimination. "A demurrer does not lie to a portion of a cause of action." (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163.) Second, the demurrer is based on the argument that Plaintiff has not sufficiently alleged that she was "replaced by a substantially younger employee with equal or inferi...

Excerpt: ...the high evidentiary burden that Plaintiff will bear in seeking to establish that Defendant acted with "oppression" or "malice" within the meaning of Civil Code section 3294(c), the court does not find Plaintiff's allegations in this regard to be so "irrelevant, false, or improper" that it would be appropriate to strike them from the complaint at the pleading stage. (Cf. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 ["The stricken language...

Excerpt: ...sby, d.b.a. Tech Express ("Plaintiff" or "Tech Express") on April 19, 2019: (1) to American Express ("AmEx"), in New York, and (2) to PayPal Inc. ("PayPal"), in San Jose. (See Decl. of Holiday D. Powell, Exhs. 3 and 4.) As noted in the reply memorandum filed on August 6, 2019, the motion was timely served on Plaintiff and Plaintiff did not file any opposition by July 31, 2019, the due date per C.C.P. § 1005. Instead, on August 8, 2019, eight day...

Excerpt: ...adjudication as to each of the nine causes of action therein (and two issues pertaining to "alter ego" liability). Because summary judgment cannot be granted unless Yu is entitled to judgment as to each and every cause of action, the court proceeds by addressing the motion for summary adjudication as to each such cause of action. A. First and Third Causes of Action The motion for summary adjudication as to the First and Third Causes of Action, fo...

Excerpt: ...ry adjudication as to each of the nine causes of action therein (and two issues pertaining to "alter ego" liability). Because summary judgment cannot be granted unless Xie is entitled to judgment as to each and every cause of action, the court proceeds by addressing the motion for summary adjudication as to each such cause of action. A. First and Third Causes of Action The motion for summary adjudication as to the First and Third Causes of Action...

Excerpt: ...ng only objections, to the above-listed RPDs on February 15, 2019. (Hoffman Decl., Exh. B.) The parties met and conferred as to the above items without success. Although UC served amended responses to other RPDs in Set Six on April 29, 2019, they did not include amended responses to the above items. (Eklof Decl., ¶ 2 and Exh. A.) UC agreed to extend the motion to compel deadline to May 7, 2019, making the instant motion timely. (Hoffman Decl., �...

Excerpt: ...issued an order sustaining a demurrer to the breach of contract cause of action in the First Amended Complaint ("FAC"), with leave to amend to allege facts sufficient to constitute such a cause of action including "(1) identifying with more specificity the contract between Plaintiff and GEICO; (2) setting forth the contract as an exhibit or alleging the material terms thereof verbatim or according to their legal effect; (3) specifying the terms t...

Excerpt: ... (4/23/19 order, citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)" The order further stated: "As GEICO is a corporate employer, such a request must include allegations to the effect that the alleged 'advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice [was] on the part of an officer, director, or managing agent of the corpo...

Excerpt: ...sclosed records to news media of sexual harassment investigations and discipline concerning roughly 113 professors at several campuses," including as to Geoffrey Marcy, Sujit Choudhry, Graham Fleming, Neza AlSayyad, Alan Tansman, John Searle, Robert Van Houweling and Bryan Wagner. (Motion, p. 3, citing Hoffman Decl., Exhs. I through T.) The court has reviewed those exhibits and they appear to include reports of the same general nature as those so...

Excerpt: ...Complaint and application papers on Anthony Durulle (or Durelle) Waters and on the Director of the Department of Motor Vehicles ("DMV"). It does not appear that Plaintiff has done so. Plaintiff Sheila Gandy ("Plaintiff") shall appear and explain what efforts she intends to take in this regard. As discussed in that order, this action was initiated by a complaint or petition on May 30, 2019, alleging that Plaintiff's nephew Anthony Durulle (or Dure...

Excerpt: ...s to whether there is a current violation of section 1941.1(a)(1), and what Defendant Bruce H. Hoeger ("Defendant") has specifically done to remedy any such condition. In its order of May 31, 2019, the court noted that Defendant attested in a May 17, 2019 declaration that in February and March 2019, Ryan Gok, a PCC journeyman specialist, "patched and filled concrete, filled joints, caulked the perimeter of the building, and filled holes with conc...

Excerpt: ... any void judgment or order." A motion to set aside void judgment or order may be made at any time, and it is immaterial how the invalidity is called to the court's attention. (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1320.) Among other things, the court may set aside a default that is void due to improper service. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200; Ramos v. Homeward Residential (2014) 223 Cal.App.4th 14...

Excerpt: ..., on June 21, 2019. (See Supp. Decl. of Neeru Jindal, filed June 28, 2019.) Despite such timely notice, Plaintiff has not submitted opposition and has not voluntarily withdrawn the Notice of Lis Pendens, recorded on May 1, 2015 as instrument no 2015115535 in the Alameda County Recorder's Office ("Lis Pendens"), despite several requests. (See Request for Judicial Notice, Exh. A; Decl. of Neeru Jindal, ¶¶ 6-8 and Exh. A; Supp. Decl. of Neeru Jind...

Excerpt: ...ourt's accompanying tentative ruling on the motion for judgment on the pleadings. RPII moves for summary adjudication in its favor as to the three matters as to which it seeks a declaratory judgment in its complaint: (1) requiring the City of Oakland ("City"), the City of Oakland Redevelopment Successor Agency ("Agency") and/or the Oakland Redevelopment Agency ("ORA") to respond in a timely manner to RPII's inquiries described in paragraph 10 of ...

Excerpt: ...hat cause of action, RPII seeks a declaratory judgment: (1) requiring the City, the City of Oakland Redevelopment Successor Agency ("Agency") and/or the Oakland Redevelopment Agency ("ORA") to respond in a timely manner to RPII's inquiries described in paragraph 10 of the complaint; (2) "holding that a sale of a percentage of RPI's ownership interest for less than ... $38,000,000 net of costs does not constitute a liquidity event under the Loan D...

Excerpt: ...Procedure section 425.16 (the anti-SLAPP statute.) Additionally, Defendants seek to recover their attorneys' fees incurred in the defense of Plaintiff's complaint under C.C.P. section 425.16(c). C.C.P. section 425.16(b)(1) states that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connec...

Excerpt: ...red to - strike allegations that are irrelevant, false or improper as reflected on the face of the challenged pleading or matters of which judicial notice is taken. Thus, for example, a "motion to strike is widely used to challenge portions of causes of action seeking punitive damages" and its "use has also been approved in a case where the face of the complaint failed to state facts showing a primary right of the plaintiff and a primary duty of,...

Excerpt: ...r "a contract implied by conduct," by which "Sanchez agreed to hold the title to the Property [at 5348 Treeflower Drive, Livermore] as the legal title holder while allowing Plaintiff to be the actual and equitable owner of the Property with sole use and control of the Property." (SAC, ¶ 41.) It further alleges: "For approximately six (6) years, Sanchez held the Property for the benefit of Plaintiff as agreed and consulted Plaintiff before taking...

Excerpt: ...sanctions than on any other facet of the case. The court does not wish to encourage the filing of additional motions such as this, as the court believes the case should be set for trial so the parties can present their arguments at trial rather than in a series of pre-trial motions essentially arguing the merits. Nevertheless, as the court must address the motion on the merits, it does raise some valid arguments about the extent to which Plaintif...

Excerpt: ...oena directed to East West Bank dated August 1, 2018 (the "Subpoena"): (1) time-frame; (2) bank account number; and (3) protective order. As to time-frame, the Subpoena seeks "[a]ll banking records of Edward Chang dba Cafe Tapioca for its Pleasanton store from 7/1/2013 through January 31, 2016...." In an email from counsel for Plaintiffs Yushan Huang aka Stacy Huang and Joshua Hsia ("Plaintiffs") dated August 16, 2018, however, Plaintiffs agreed ...

Excerpt: ...f Civil Procedure sections 128.5 et seq., 2023.030 et seq., the Discovery Act and the inherent authority of the court. The motion focuses on a letter and two declarations attributed to Fei Liu, Phebe's husband Tony's business partner, which Defendants assert contained text that was either mis-translated from the original Chinese or fabricated, as well as an incorrectly explained redaction in the letter. The letter was filed on July 24, 2018, in c...

Excerpt: .... (Though the notice of motion also refers to C.C.P. § 425.11 and "lack of or improper service of summons," there are no arguments and no evidence in this regard in the supporting memorandum or declaration.) First, Defendant has not made a sufficient showing for relief pursuant to section 473.5. That statute authorizes relief "[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action...." (C.C.P. § 47...

Excerpt: ...tion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit." (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047, citing Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Such liberality in allowing amendments is to be exercised "at any stage of the proceedings, up to and including trial," absent prejudice to the adverse party. (Atkinson v. Elk ...

Excerpt: ...ons in the Small Claims Court and/or submit their dispute to private arbitration." (Notice of Motion, p. 1.) Neither the notice of motion nor the supporting memorandum cites the statutory basis for such request. The request is based on the assertion that Defendant and Plaintiff Barclays Bank Delaware ("Plaintiff") are parties to a "Cardmember Agreement" that mandates that any disputes between the parties must be resolved through private arbitrati...

Excerpt: ...nsidered the moving papers, and allowing opposition and reply papers by June 25, 2019 and June 28, 2019, respectively. After considering the moving, opposition and reply papers filed on that schedule, the court rules as follows. First, the request for an order compelling Defendants Rahi Systems, Inc. ("Rahi") et al. (collectively "Defendants") to produce Mark Cohen for deposition pursuant to the Deposition Subpoena served on May 15, 2019 ("Subpoe...

Excerpt: ...ember 26, 2018, and amended responses on or about March 27, 2019. The motion seeks further responses to RPDs Nos. 17, 20 and 21 to SRC and to RPDs Nos. 4, 5, 6 and 7 to SBS. As to RPDs Nos. 17, 20 and 21 to SRC, the motion is GRANTED IN PART. These RPDs seek SRC's corporate stock ledgers, financial statements and general ledgers from 2014 to the date of production. The amended responses contain objections on grounds of overbreadth, burden, lack o...

Excerpt: ...� 335.1, which requires a cause of action for "injury to ... an individual caused by the wrongful act or neglect of another" to be brought within two years. Plaintiff alleges the accident and injuries occurred on August 12, 2016. (SAC, Attachment 15, ¶ 1.) Plaintiff did not file the initial complaint in this action until October 17, 2018. Thus, absent "equitable tolling" or another basis to toll the statute of limitations, the cause of action wo...

Excerpt: ...has sufficiently demonstrated that it followed the procedures in C.C.P. §§ 386 et seq. for filing its Verified Complaint for Interpleader on October 24, 2018 and for seeking an order discharging it from liability as to the full penalty of Bond No. 358562C in the sum of $15,000 issued on behalf of Wooden Window, Inc. (hereafter the "Bond"). (See C.C.P. § 386(a) and (c); see also Sweeney v. McClaran (1976) 58 Cal.App.3d 824, 828.) Under C.C.P. �...

Excerpt: ...s. The discussion was instead focused on the merits of each side's legal position. Plaintiff correctly asserts that Defendant is required to allege sufficient facts to support each of the identified affirmative defenses. See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. The Court cannot overlook Defendant's failure to comply strictly with her pleading obligation just because virtually no parties actually make factual allegati...

Excerpt: ...ment of Motor Vehicles ("DMV"). This action was initiated by the filing of a complaint or petition by Plaintiff Sheila Gandy ("Plaintiff") on May 30, 2019, alleging that her nephew Anthony Durulle (or Durelle) Waters "unlawfully transferred or started the transfer of my Ford 150 2005," and that "DMV has a title transfer pending as of May 16, 2019." The complaint, along with the "ex parte" application filed on May 30, 2019, seeks a restraining ord...

Excerpt: ...oena directed to East West Bank dated August 1, 2018 (the "Subpoena"): (1) time-frame; (2) bank account number; and (3) protective order. As to time-frame, the Subpoena seeks "[a]ll banking records of Edward Chang dba Cafe Tapioca for its Pleasanton store from 7/1/2013 through January 31, 2016...." In an email from counsel for Plaintiffs Yushan Huang aka Stacy Huang and Joshua Hsia ("Plaintiffs") dated August 16, 2018, however, Plaintiffs agreed ...

Excerpt: ...rko") rather than Cross-Defendant Steve Wilt ("Wilt"), although this is not clear. The last sentence of the introduction states: "Solomon now seeks reimbursement of these fees as a direct damage [sic] of Wilt and Berko's actions." The last sentence of the argument section states: "As a result, Solomon request [sic] this court employ the exception created by the tort of another doctrine and require Berko to reimburse Solomon for the fees incurred ...

Excerpt: ...auses of action in the complaint filed on August 6, 2018. Ally introduced evidence sufficient to meet its initial burden under C.C.P. § 437c(p)(1) of supporting all elements of its causes of action for breach of contract, claim and delivery, injunctive relief and indebtedness for money. (See Separate Statement of Undisputed Material Facts ["UMF"], Nos. 1-8, Issue One (first and fourth causes of action), Nos. 1-8, Issue Two (second and third caus...

Excerpt: ...f Civil Procedure sections 128.5 et seq., 2023.030 et seq., the Discovery Act and the inherent authority of the court. The motion focuses on a letter and two declarations attributed to Fei Liu, Phebe's husband Tony's business partner, which Defendants assert contained text that was either mis-translated from the original Chinese or fabricated, as well as an incorrectly explained redaction in the letter. The letter was filed on July 24, 2018, in c...

Excerpt: ...e or other damages imposed primarily for the sake of example and by way of punishing the defendant." (Gov. Code § 818.) Accordingly, IT IS ORDERED that item 3 of the Prayer for Relief is STRICKEN. The motion to strike the request for injunctive relief, as sought in item 7 of the Prayer for Relief, is DENIED. Although there is no opposition by Plaintiff Bobby Pierce II ("Plaintiff"), a motion to strike is subject to the court's discretion, regard...

Excerpt: ...acts sufficient to constitute a defense. (See Code Civ. Proc. § 438(c)(1)(A).) Defendant's statement "I can pay month a month for me no problem is OK" is not sufficient to dispute the allegations of the complaint or to constitute a defense. Pursuant to Code of Civil Procedure § 431.20(a), "[e]very material allegation of the complaint or cross-complaint, not controverted by the answer, shall, for the purposes of the action, be taken as true." (S...

Excerpt: ...tion at that time. Instead, counsel shall be prepared to address the following matters: (1) On June 13, 2019, Plaintiffs Peter Yeh aka Chu-Kuo Yeh and Chiu-Ying Yeh ("Plaintiffs") filed an Ex Parte Application to continue the hearings on the two motions for summary judgment, along with the trial and related dates. The court has considered the opposition papers filed by Defendants on June 13, 2019, but has not ruled on that application. Instead, t...

Excerpt: ..., 2019, the other three defendants/cross-defendants addressed in this motion (James L. Krasne, as Trustee of the Guilford Glazer Trust of 1984; Diane Pregerson Glazer, as Trustee of the Diane Pregerson Glazer Survivor's Trust; and Jeremy Blanchard), hereafter "Managers," served verified amended responses. (See Reply, p. 2; see also Decl. of Nicole L. Jones, Exhs. A and B; Decl. of Gregory Prongos, ¶ 8 and Exh. 4.) While Carson and Managers conte...

Excerpt: ...sufficient to constitute a defense. (See Code Civ. Proc. § 438(c)(1)(A).) Defendant's statements that "I have a hard time paying them, that's why I go to debt settlement" and "I am on debt settlement but they need to wait for them to be paid" are not sufficient to dispute the allegations of the complaint or to constitute a defense. Pursuant to Code of Civil Procedure § 431.20(a), "[e]very material allegation of the complaint or cross-complaint,...

Excerpt: ...Plaintiff Yen H. Dang ("Plaintiff") on February 25, 2015, or alternatively summary adjudication as to each of the two causes of action therein: the First Cause of Action for Quiet Title and the Second Cause of Action for Declaratory Relief. As discussed below, BONYM is entitled to summary adjudication as to both causes of action and hence summary judgment as to the entire complaint. A. First Cause of Action The First Cause of Action, for Quiet Ti...

Excerpt: ...36(a), the court "may" - but is not required to - strike allegations that are irrelevant, false or improper as reflected on the face of the challenged pleading or matters of which judicial notice is taken. Thus, "when a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of act...

Excerpt: ...36(a), the court "may" - but is not required to - strike allegations that are irrelevant, false or improper as reflected on the face of the challenged pleading or matters of which judicial notice is taken. Thus, "when a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of act...

Excerpt: ... April 8, 2019 in accordance with C.C.P. §§ 1285.4 and 1290.4. The instant petition was filed and served 46 days after filing and service of the petition to confirm the award, which is well beyond the 10-day period (plus 5 for service by mail) required by C.C.P. § 1290.6 for a "response" to a petition to confirm an award. Section 1290 provides that the allegations of a petition are "admitted by a respondent duly served ... unless a response is...

Excerpt: ... Section 1290.6 states in relevant part that a "response shall be served and filed within 10 days after service of the petition" except where service is outside the state pursuant to C.C.P. § 1290.4(b)(2), which was not the case here. Section 1290 provides that the allegations of a petition are "admitted by a respondent duly served ... unless a response is duly served and filed." (C.C.P. § 1290.) As a response was not "duly served and filed" wi...

Excerpt: ...connection between the negligent conduct and the resulting injury" and the "actual loss or damage resulting from the professional's negligence." (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) In its order of April 9, 2019, the court sustained a demurrer to a similar cause of action in the First Amended Complaint ("FAC"), with leave to amend on the same basis. Though the SAC includes additional allegations in this regard, the Fifth Cause of Action rema...

Excerpt: ...703 Mathew Street, Berkeley, California (the "Property"), and for a stay until the defendants "cure and correct" the alleged violations, is DENIED. In deciding whether 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 ...

Excerpt: ...ocedure section 397 and California Government Code section 12965(b)." In the supporting memorandum, Defendants include a paragraph arguing that the "convenience of witnesses and the ends of justice would ... be promoted by the change to Stanislaus County" under Code of Civil Procedure ("C.C.P.") section 397(c), but this is not stated as a separate ground for the motion in the notice of motion. (See Notice of Motion, p. 2; Memo., p. 7.) As to the ...

Excerpt: ...iled on May 31, 2019 and June 7, 2019, reporting on the status of the parties' meet and confer efforts. Based on the emails from Eduardo Robles dated May 20, 2019, and from Candice Hamant dated May 30, 2019, it appears that CBRE is in the process of assembling what Plaintiffs characterized as "[a]ll work orders/emails for the Saratoga Center - Building Two located at 5934 Gibraltar Dr., Pleasanton, CA 94588 for 2014 to 2016, dealing with the bath...

Excerpt: ...of its insured, the Salwan Living Trust ("Salwan"). (FAC, ¶¶ 2, 6, and 27- 44.) Salwan owns real property at 27389 Tyrrell Ave., Hayward, adjacent to real property owned by HUSD at 27211 Tyrrell Ave., Hayward, which is used as a Student Information & Assessment Center ("SIAC"). (Id., ¶¶ 2 and 7.) On September 14, 2015, a fire occurred at the SIAC, damaging Salwan's property and causing CCIC to reimburse Salwan for losses, under the terms of a...

Excerpt: .... The sole cause of action against Doe 1 is the First Cause of Action for negligence, which alleges that Shadow Woods Homeowners Association ("Shadow Woods"), Associa Northern California ("Associa") and Does 1 through 20 "carelessly and negligently used, controlled, maintained, and/or inspected THE PREMISES where plaintiff JIAN HE was injured, so as to permit a broken, cracked, or defective tree to remain in use. This created a dangerous and unsa...

Excerpt: ...may promptly move for a protective order," and the "court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense," including "(5) [t]hat a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way." (C.C.P...

Excerpt: ...1, 1149-1150; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.) Nevertheless, as the court stated in CLD Construction, supra, even where an answer is improperly filed by an unrepresented corporation, the court should give notice to the corporation that it needs to retain new counsel promptly and that if it fails to do so its pleadings can be stricken. (Id.) Here, the answer filed by Defendant 360 IT Professionals, Inc. ("360 IT"), on February...

Excerpt: ...ing to the terms and conditions of such agreement to binding arbitration...." (Notice, p. 2.) Section 1281.5, cited in the notice of motion, refers to circumstances were a person "proceeds to record and enforce a claim of lien by commencement of an action pursuant to Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil Code...." The instant action alleges that Plaintiff Pacific Data Electric, Inc. ("PDE") "reco...

Excerpt: ...rties' meet and confer efforts. Based on the attached emails from Eduardo Robles dated May 20, 2019, and from Candice Hamant dated May 30, 2019, it appears that CBRE is in the process of assembling what Plaintiffs characterized as "[a]ll work orders/emails for the Saratoga Center - Building Two located at 5934 Gibraltar Dr., Pleasanton, CA 94588 for 2014 to 2016, dealing with the bathrooms, restrooms, men's room, ladies rooms, lavatory, facilitie...

Excerpt: ...ons. The issues in this motion overlap to a large extent with those raised in Plaintiff's accompanying motion to quash subpoenas, so the court's ruling on this motion draws on the court's discussion of the issues and law in its accompanying order. As to RPDs Nos. 23 and 24, the motion is GRANTED, for the reasons in the accompanying order. As to RPD No. 30, the motion is DENIED, conditioned on Plaintiff's execution of a stipulation in the form des...

Excerpt: ... ("Marin County"). (See Decl. of Mathew Stephenson, Exh. B ["Subpoenas"]). The first two Subpoenas seek a subset of Plaintiff's medical records (from Kaiser) and therapeutic records (from Dr. Cohen, a licensed clinical social worker) in the date range of 1/01/2016 to 12/31/2017. The third Subpoena seeks a subset of Plaintiff's personnel records from her work with Marin County from January 1, 2012 through March 30, 2015, prior to her work with the...

Excerpt: ...ddresses the merits despite the argument by Plaintiffs Yushan Huang aka Stacy Huang ("Stacy") and Joshua Hsia ("Joshua") (collectively "Plaintiffs") that Defendants did not engage in sufficient "meet and confer" efforts under C.C.P. § 430.41. The court is not persuaded that the meet and confer efforts were deficient. (See also C.C.P. § 430.41(a)(4).) The court disagrees with Plaintiffs' argument that the demurrer exceeds the 15- page limit. As ...

Excerpt: ...other things, the following: (1) The court would appreciate preparation of an exhibit comparing: (a) the English translation of the letter of Fei Liu ("Liu") as provided by Plaintiffs' counsel and the correct English translation as based on Liu's deposition testimony, supported by citations to the page and line numbers in Liu's deposition testimony in which he provided the correct translation; and (b) the English translations of the Liu declarati...

Excerpt: ..., among other things, the following: Preliminarily, as the court observed at prior hearings in this case, the court does not believe it has presided over any other case in which so many motions for sanctions have been filed. It appears that the parties have spent more time and resources on motions for sanctions than on any other facet of the case. The court does not wish to encourage the filing of additional motions such as this, as the court bel...

Excerpt: ...ence will be required to justify a court in setting aside the default." (Id.) "Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default." (Elston v. City of Turlock (1985) 38 Cal. 3d 227, 233-234.) Here, the court finds the evidence sufficient to meet this burden. (See Decls. of Richard Chao Hen Wahng, Heather Norton and Tom...

Excerpt: ...ere is a current violation of section 1941.1(a)(1), and what Defendant Bruce H. Hoeger ("Defendant") has specifically done to remedy any such condition. In its order of April 19, 2019, the court stated that the supplemental papers filed on April 2, 2019, and April 9, 2019, assisted the court in that analysis but remained "unclear as to whether and to what extent the water intrusion issue (or other issues that Plaintiff contends pose an immediate ...

Excerpt: ...SC that required a contractor's license and that MPI did not have such a license. (Cross-Complaint, ¶¶ 16-18.) WSC alleges that, pursuant to Business and Professions Code section 7031(b), WSC is thus entitled to recover all compensation paid to MPI as an unlicensed contractor. (Id., ¶ 19.) MPI's demurrer is based on the ground that this was a claim that was required to be brought as a compulsory cross-complaint in the prior action entitled Mas...

Excerpt: ... "for the purpose of determining the extent to which leave to amend should be granted as to the Sixth Cause of Action, as requested by Plaintiff Ashley Stewart ('Plaintiff')"; and (3) an order on May 10, 2019, continuing the hearing to May 24, 2019, "based on the emailed request from counsel for Plaintiff Ashley Stewart stating her inability to attend a hearing on May 10, 2019." The order of April 11, 2019, stated in part: "Prior to the hearing o...