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Defendant's products, or Defendant's alleged failure to provide the required warning, so Plaintiff is deemed to have withdrawn the cl...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