Excerpt: ...dino, Case No. CIV-DS-19-09557. McCorkle v. Ralphs Grocery Company, Superior Court of the State of California, County of San Diego, Case No. 37-2019-00017091. The petition to add on cases to the JCCP concerns three additional cases, each of which is also brought on behalf of the LWDA under PAGA seeking penalties for Labor Code violations. Regarding the proposed add-on cases under CRC 3.544, the court ORDERS: The petition to add-on Armstrong and R...

Excerpt: ...nd that the court lacks jurisdiction because Plaintiff has failed to timely comply with the Government Claims Act. First, Defendant argues that Plaintiff has not alleged compliance, exhaustion of remedies under the grievance process set forth in the collective bargaining agreements between OUSD and the two applicable unions, United Administrators of Oakland Schools ("UAOS") and the Oakland School Employees Association/Service Employees Internatio...

Excerpt: ...cer-causing substance. However, Plaintiff's Moving papers contain no evidence regarding what testing was conducted on Defendant's at-issue cookies or what levels of acrylamide were discovered by the testing of said cookies. Nevertheless, the proposed settlement of Plaintiff's sole cause of action for violation of Prop. 65 provides in relevant part that Defendant pay a civil penalty of $12,000 and also to pay $108,000 to Plaintiff's counsel in lie...

Excerpt: ...tions or tactics that are frivolous or solely intended to cause unnecessary delay." (CCP §128.5.) "Frivolous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP §128.5(b)(2).) At this point in the litigation, the court cannot Pursuant to §128.5, defendant requests attorney's fees incurred by Plaintiff's counsel for bringing the present motion, which defendant argues was brought in bad fait...

Excerpt: ...nt to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association (2018) 19 Cal. App. 5th 399, 428.) Each of these elements, including causation and damages, must be pleaded with particularity. (Ibid.) To survive demurrer, plaintiff must plead facts that "show how, when, where, to whom, and by what means the representations were tendered." (Hamilton v. ...

Excerpt: ...o as the proxy or agent of the state's labor law enforcement agencies." (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also ZB, N.A. v. Superior Court of San Diego County (2019) 2019 WL 4309684 at *4; Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 671.) A person asserting a claim on behalf of the LWDA under PAGA must obtain court approval for any settlement. Labor Code 2699(l)(2) states: "The superior cou...

Excerpt: ...6 (33%), costs of up to $3,000, a service award of $5,000 for the class representative, a net PAGA payment of $750, and settlement administration costs of up to $2,500. After these expenses of approximately $28,000, the class would get $22,000. The average payout per class members would be $850. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analys...

Excerpt: ...eviously certified the class. (Order of 10/6/19.) The case preliminarily settled for monetary relief of a total of approximately $700,000. The settlement agreement states there will be attorneys' fees and cost of up to $210,000 (30%) and a service award of $10,000 for each class representative. The case preliminarily settled for non-monetary relief of agreement to cooperate in the discovery for the claims against Midland. The proposed class notic...

Excerpt: ... The settlement agreement states there will be attorneys' fees and cost of up to $116,666.67 (33 1/3%), costs of up to $25,000, a service award of $10,000 for the class representative, and settlement administration costs of up to $5,000, and a net PAGA payment of $7,500. After these expenses of approximately $164,166, the class would get $185,834. The average payout per class members would be $1,858. The proposed class notice form and procedure a...

Excerpt: [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, May 5, 2021 at 1:30 p.m. or at a subsequent date and time set by the Clerk of Dept. 514. The subject line of the email to the Court contesting the tentative ruling must lis...

Excerpt: ...t of business. This is a significant factor in the settlement. The case preliminarily settled for a total of $300,000. The settlement agreement states there will be attorneys' fees and cost of up to $120,000 (40%), costs of up to $4,490, a service award of $10,000 for the class representative, a net PAGA payment of $2,250, and settlement administration costs of up to $22,800. After these expenses of approximately $140,000, the class would get $14...

Excerpt: ...ion within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plainti...

Excerpt: ...asserts only the First Cause of Action for Harassment against Defendant Scott Page. The allegations and claims in the Complaint determine the scope of relevant issues before the Court. See Johnson v. Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636; and Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493. Plaintiff, who is African American, was hired by National University on February 11, 2015. National University System ("NUS") i...

Excerpt: ...e seeking relief; the moving papers currently filed do not satisfy the clear and convincing evidentiary standard required under CCP §§36(d) or (e). STANDARD OF LAW CCP § 36 provides in relevant part: "(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doub...

Excerpt: ...r production of documents. The Court has reviewed the requests for production attached as Exhibit A to the Declaration of Audrey Smith. The Court has been advised that the scope of requests nos. 1 and 2 were limited after a discussion between the attorneys. Although Ms. McKewon, through her attorney Jonathan C. Teller, objected to the scheduling of the deposition on March 26, 2021, she did not object to the requests for production. Ms. McKewon ap...

Excerpt: ...anuary 25, 2021, Plaintiffs served a notice of deposition with a request for production of documents for the deposition of Carquest's person-most-qualified ("PMQ") and custodian of records ("COR") to commence on February 4, 2021. Carquest served objections on February 1, 2021. The parties dispute whether a dissolved corporation must provide a witness to sit for deposition in defending lawsuits. Carquest objected in part because it is a dissolved ...

Excerpt: ...ter counsel met and conferred on March 19, 2021 regarding the responses served on March 15, 2021, Plaintiff produced additional documents that counsel believed were responsive to request no. 1, but it did not amend the original deficient response. Plaintiff's response is inherently ambiguous because it asserts several objections, which have some merit, but then states that it will produce all documents responsive to the request. The Court does no...

Excerpt: ...parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, May 5, 2021 at 1:30 p.m. or at a subsequent date and time set by the Clerk of Dept. 514. The subject line of the email to the Court contesting the tentative ruling must list the case name and number, and the email must identify the reason for th...

Excerpt: ...ial setting. "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (CCP § 36(e).) Plaintiffs ask that the current August 16, 2021 trial date be designated as a preferential trial date. Mr. Malnar is 64 years old, and was diagnosed with Stage IV lung cancer in April...

Excerpt: ...judgment. On 7/18/16 the court granted summary judgment against Edward Plummer (Grandfather). Edward Plummer did appeal this Court's judgment, and the court of Appeal reversed. On 8/21/20, defendant Kaiser filed a motion for judgment on the pleadings asserting that under CCP 377.60 the Grandfather did not have standing to sue for wrongful death. On 9/22/20, the court granted that motion as to Grandfather stating: "Plaintiff concedes that he does ...

Excerpt: ..., Plaintiff noticed leaks and mold in his unit. (1AC, para 18.) In the spring of 2019, plaintiff noticed bed bugs in his unit and self-treated the unit for beg bugs. (1AC, para 20, 21.) The treatment was unsuccessful. (1AC, para 21.) In March 2019, Plaintiff reported bed bug and mold issues to Defendants. (1AC, para 22.) Defendants took no action. (1AC, para 23.) On 5/14/19, Plaintiff filed a housing inspection request with the City. (1AC, para 2...

Excerpt: ... (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact...

Excerpt: ...lifornia. In Opposition to the Motion, Plaintiffs' evidence is too speculative to meet their burden to show triable issues of material fact regarding whether Mr. Sexton actually worked with pipe covered with Somastic when Defendant was the sole manufacturer. From 1946 to 1953, Defendant was the sole manufacturer and distributor in 11 western states including California of "Somastic" an anti-corrosive coating for steel pipe, which was made from a ...

Excerpt: ...rks for Kane and Associates Inc. The seller was represented by real estate agent Kate McCaffrey. Ms. McCaffrey works for Pacific Union International, Inc. Plaintiffs contend that they sustained compensable damages because neither Defendants nor the seller disclosed to them that a third bedroom was constructed without obtaining the necessary permits. The Court understands that Plaintiffs did not sue the seller because he is dead. On June 7, 2019, ...

Excerpt: ...arris ("Defendants") in advance of the hearing. Defendants have not filed papers responsive to the Motion. Therefore, any defect in service of the Moving papers has not been waived. The Moving papers contain a declaration of plaintiff Smith stating that on 3/11/2020, he served Form Interrogatories and Requests for Production of Documents on Defendant's counsel. However, the moving declarations do not contain as exhibits copies of these written di...

Excerpt: ..., leading to an infestation of cockroaches. Whether those allegations are true cannot be determined in ruling on this demurrer. However, BSR has not adequately alleged how they have suffered any cognizable damage as a result of the Tenants' conduct. For example, has BSR had to incur any extra costs to address the alleged cockroach infestation? Has BSR lost any tenants due to the cockroach infestation? BSR is given leave to amend to clearly allege...

Excerpt: ...es not discuss in detail the grounds for awarding attorneys' fees pursuant to contract as they were previously addressed by the Court of Appeal, though the court notes that Plaintiff raises many of the same objections to the award of attorneys' fees, which the court addresses below. (See: Defendant's Request for Judicial Notice at Exhibit B, Pages 14-15.) Additionally, California Rule of Court Rule 8.278(a)(1) and 8.278(a)(3) entitled Defendant, ...

Excerpt: ... The settlement agreement states there will be attorneys' fees of up to $1,966,470 (33%), costs of up to $75,000, a service award of $10,000 for the class representative, and settlement administration costs of up to $36,000, and a net PAGA payment of $45,000. After these expenses of approximately $2,213,470, the class would get $3,767,530. The average payout per class members would be $884. The proposed class notice form and procedure are adequat...

Excerpt: ...to recover for injury to his land caused by a person not authorized to occupy the premises. (See Smith v. Cap Concrete Inc. (1982) 133 Cal.App.3d 769, 774.) Tinsley alleges he owns the subject property and Glaude occupies it without any right to do so. (See Second Amended Complaint, paragraphs 6, 10-13, and 21.) In addition, these causes of action are not timebarred by any statute of limitations, because Tinsley has alleged a continuing trespass ...

Excerpt: ...e Court concludes that there are sufficient grounds to support Plaintiff's request for leave to file a Second Amended Complaint, but it will not approve the filing of the Second Amended Complaint attached to the motion because it is far too lengthy. The operative First Amended Complaint is itself too lengthy at 31 pages. The proposed Second Amended Complaint is at least 46 pages long. Counsel shall allege only ultimate facts and not evidentiary f...

Excerpt: ...against Defendant. Further, the Court ORDERS the present action STAYED until arbitration proceedings are completed. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, April 27, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, passwo...

Excerpt: .... section 2024.050 states as follows: "(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. "(b) In exercising its discretion to grant or deny this motion, the court shall take into ...

Excerpt: ...nce the May 10, 2017 accident. The scope of the examination was also based on Plaintiff's representation that she would not be making a claim for mental and emotional distress above and beyond that usually associated with her physical injuries. See CCP § 2032.320((c)(1). As indicated by Defendant in great detail, Plaintiff appeared to disclaim the representations made by counsel prior to Dr. Strassburg's examination after he completed the examin...

Excerpt: ...rty moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of prod...

Excerpt: ...is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is ...

Excerpt: ...ments as revised. CLASS CONDITIONALLY CERTIFIED When no class has been certified, as is the case here, the Court must determine whether the case meets requirements for certification. (See Anchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 625-627.) The concerns of manageability and due process for absent class members, which counsel against class certification in a trial context, are eliminated or mitigated in the context of settlement. (Dunk v....

Excerpt: ...laint, hereafter "Pl. MPA," p. 5.) Plaintiff filed this personal injury action of June 3, 2020 alleging that she developed mesothelioma as a result of long time use of asbestos contaminated talcum powder but that complaint did not claim that the alleged asbestos exposures resulted in development of her fallopian tube carcinoma. (Rivamonte Decl., Exh. A, First Amended Complaint.) Plaintiff was deposed in this case in August, 2020. Defendants claim...

Excerpt: ...ity line of credit with a credit limit of $200,000 from National City Bank. Prior to the default of the Pentons, the right to make claims on the debt was sold to USMR Fund 10 LP. When the Pentons defaulted on their payments, they owed the sum of $182,561.62. The lender's lien interest in the Pentons' property on Machado Court, in Hayward, was extinguished when the senior lienholder caused the property to be sold at a trustee's sale. Plaintiff sub...

Excerpt: ...to PAGA cases. Settlements of both class actions and PAGA actions must be found to be "fair, adequate, and reasonable." (See, e.g., Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 244.) When evaluating class action settlements, the Court considers (1) the relative strength of the plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation of this dispute; (3) the risk of maintaining class status throu...

Excerpt: ...on of plaintiff Daniel Ridge's ("Plaintiff") First Amended Complaint ("FAC"), many of which DUMF do not appear to be "material" and which Defendant admits are being provided as "background." (See Defendant's Separate Statement at fn. 2.) " 'Material facts' are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of t...

Excerpt: ...hich it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) DEMURRER TO THE SECOND CAUSE OF ACTION- PRODUCTS LIABILITY Defendants demurrer to the second cause of action for products liability on the grounds that they were not manufacturers of the products at issue and were an "end-user" of the product. Plaintiff generally alleges that ...

Excerpt: ...endant's employee or employees. The Court notes that Roadrunner Transportation did not file an opposition, nor did Plaintiff Rodney Deed object to the production of his employment records. The Court, however, cannot order an out-of-state entity to comply with a California subpoena duces tecum. Defendant has not shown that the Illinois entity is subject to the Court's jurisdiction. The motion is granted as to the August 4, 2020 subpoena duces tecu...

Excerpt: ...es to Cross-Defendant's (1) Form Interrogatories, Set One, Nos. 4.1, 6.5, 6.6, 6.7, 8.7, 8.8, 9.1, 11.1, 11.2, 13.1, 13.2 and 14.1; (2) Cross-Defendant's Special Interrogatories Nos. 2-5 only; and (3) Cross-Defendant's Requests for Production of Documents Nos. 5-16 and 19, no later than Friday, June 4, 2021. The Court notes that Cross-Defendant's Notice of Motion improperly fails to identify the specific written discovery requests to which it see...

Excerpt: ...rty moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of prod...

Excerpt: ...y move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or m...

Excerpt: ...e Court ORDERS that defendants shall have a total of 14 hours to depose plaintiff Edward Richards ("Mr. Richards"), exclusive of Plaintiffs' counsel's direct or re-direct examination, pursuant to CCP § 2025.295(b)(2) and (c). Plaintiffs allege that Mr. Richards has pleural mesothelioma as a result of working for more than thirty years as a pipe fitter with many different asbestos-containing products. Plaintiffs name more than 100 different defen...

Excerpt: ... for the majority of the material, nonparty witnesses in this case, trial in El Dorado County would be vastly more convenient than trial in Alameda County. WSR identifies 19 witnesses whom it intends to call for trial, each of whom has submitted declarations in support of this motion. Of those 19 witnesses, 10 are South Lake Tahoe police officers or officers with the El Dorado County Sheriff's office who were involved in the response to, and inve...

Excerpt: ...history and background of the case given the many demurrers and motions brought before the court. The length of the motion renders the motion unmanageable and the court is required to spend significant time trying to decern the necessary information from the superfluous. "There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power ...

Excerpt: ...urden of proving by a preponderance of the evidence any fact necessary to its defense. [Citations] The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination." Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842. While Defendant presents evidence that Plaintiff agreed to Defendan...

Excerpt: ...dgment or adjudication on each of its causes of action. Defendants oppose. For the reasons discussed below, the City's motion for summary judgment is DENIED. LEGAL STANDARDS The purpose of summary judgment procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App...