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: ...") 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in Defendant's products, or Defendant's alleged failure to provide the required warning, so Plaintiff is deemed to have withdrawn the cl...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: .... 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: ... ("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: ...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: ...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: ...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: ...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: ...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...