Excerpt: ...s Complaint alleges causes of action for: 1) vicarious liability for negligence under Government Code sec. 815.2; 2) dangerous condition of public property under Government Code section 835; 3) negligent hiring; 4) negligent supervision; 5) negligent retention; and 6) gross negligence. LEGAL STANDARD A defendant moving for summary judgment meets its burden of proof of showing that a cause of action has no merit if that party shows that ... there ...

Excerpt: ...int, paragraphs 8-9.) Plaintiff alleges that the Preliminary Title Report failed to disclose that there was a lien on the subject property, and as a result Plaintiff's attempt to subsequently resell the subject property to an unidentified buyer fell through. (See First Amended Complaint, paragraph 11.) Although Plaintiff was eventually able to resell the subject property to a different buyer, the sale price was less that Plaintiff would have obta...

Excerpt: ...aratory Relief regarding the meaning of "occurrence"; 4) Fourth Cause of Action for Declaratory Relief regarding payment of policy benefits; and 5) Fifth Cause of Action for Declaratory Relief regarding erosion and/or exhaustion of policy limits. BACKGROUND Plaintiff manufactured mechanical pipe joining products (e.g., couplings and valves). Defendants American Home Assurance Company, The Insurance Company of the State of Pennsylvania, National U...

Excerpt: ...ies in their briefing, including enlarged discussions of Huff v. Securitas Security Services USA, Inc., infra, and Williams v. Superior Court, infra. The supplemental briefs do not alter the outcome of the Motion. Plaintiff's Complaint consists of a single cause of action for violation of the Private Attorney General's Act ("PAGA"). Plaintiff brings her claim on behalf of herself and all other "aggrieved employees." Plaintiff has propounded Speci...

Excerpt: ...ly after the deal to acquire Bright Pattern, Inc. dissolved. Defendant believes it is likely that the requested records will contradict or at least call into question Plaintiff's allegations in the Complaint and support its allegations in the Cross-Complaint. Defendant's motion is denied because the Court agrees with Plaintiff's assertion that the cost and burden of searching for all records within the company related to Dimelo, S.A. is outweighe...

Excerpt: ...or summary adjudication on the causes of action for negligent supervision and negligent retention, contending that because it has admitted vicarious liability for the negligence, if any, of AMV, it cannot also be sued for negligent supervision and/or retention of AMV. Defendant Golden Cargo's response to Plaintiff's request for admission 2 was as follows: "REQUEST FOR ADMISSION NO.2: Admit that Martinez-Victoria was in the course and scope of his...

Excerpt: ...ng against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Goncharov v. Uber Techs., Inc. (2018) 19 Cal.App.5th 1157, 1165.) Here, Defendant Landau has demurred to both of Plaintiff's causes of action in t...

Excerpt: ...ercation with a security agent at the bus station and that several City police officers were called to the station. After an investigation, the police declined to arrest Morales. Plaintiffs allege that by failing to arrest and/or disarm Morales, the City's police officers were a substantial factor in causing their decedent's death. Public entities are generally not liable for failing to protect individuals against crime. (See Zelig v. County of L...

Excerpt: ...nable to "plead around" the SOL defense and therefore granted Plaintiff leave to amend. Plaintiff filed her First Amended Complaint on January 28, 2020. The FAC contains all the essential allegations of the Complaint, but includes argument regarding Code of Civil Procedure section 1010.6(b)(3) in an attempt to render her claims timely filed. Because the Court finds these new allegations insufficient to overcome the SOL defense to Plaintiff's clai...

Excerpt: ...erve his Memorandum of Costs seeking reimbursement of $58,964.95. Defendant filed her Motion to Strike and/or Tax Costs on July 16, 2020. Defendant's motion is granted because the Court does not agree with Plaintiff's contention that he is the "prevailing party." See CCP § 1032(a)(4). The Court is quite familiar with the facts and the procedural history of this case originally filed on March 11, 2015. This is a case where the Court does not simp...

Excerpt: ...General has not been provided with the required information regarding the parties and the claims at issue as detailed in the notice, which was served on the same day as the filing of First Amended Complaint, and was the first time the settling defendant was listed as a party. Second, the parties have submitted insufficient evidence to support their assertions that the civil penalty assessed by the consent judgment is reasonable based on the crite...

Excerpt: ... PARTY WISHES TO CONTEST THIS TENTATIVE RULING, the hearing on this Motion will be conducted on Tuesday, August 11, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Friday, August 7, 2020, 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 t...

Excerpt: ... Motion to Strike is DENIED. As a threshold matter, the Court admonishes Cross-Complainant for filing a consolidated opposition to Cross-Defendant's Demurrer, Motion to Strike and Motion for Judgment on the Pleadings without leave of court. Cross-Complainant shall file responsive briefs for each individual motion in all future filings. STANDARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v....

Excerpt: ...bsections, each of which identifies a specific statutory violation. The proposed settlement is for $975,000 plus Ross changing its arbitration agreement to clarify that it does not purport to require arbitration of LWDA claims brought under PAGA. The settlement would distribute the funds as follows: Attorneys' fees of $292,500 (30% of total) Litigation Costs of $17,733 Settlement administration costs of $8,000 Service payment to named plaintiff o...

Excerpt: ...ient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly plead...

Excerpt: ...scovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (CCP § 2017.010.) "[S]tatutes governing discovery 'must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.'...

Excerpt: ...h 91, 96.). Defendant seeks summary adjudication of Plaintiff's allegation that he was exposed to respirable asbestos from Defendant's asbestos-containing talc incorporated into joint compounds and paints around which Plaintiff worked. However, Plaintiff's Responses to Defendant's Special Interrogatories also state that Plaintiff was exposed to Defendant's asbestos- containing talc incorporated into Old Spice perfumed talc. The MSA is silent as t...

Excerpt: ...band, Mathieu Leonelli, witnessed the accident. Villegas was the primary care provider for her newborn. LEGAL STANDARD A defendant moving for summary judgment meets its burden of proof of showing that a cause of action has no merit if that party shows that ... there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one ...

Excerpt: ...ate a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by the defendant to cause injury ...

Excerpt: ...he Motion demonstrates that Defendant served Plaintiff with a Subpoena on April 21, 2020, scheduling his oral deposition on May 1, 2020. (Droege Decl., ¶¶ 9-10 and Exh. F.) "Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service: (1) Personal attendance and testimony, if the subpoena so specifies. (2) Any specified production, inspection, te...

Excerpt: ... Judgment of Global Medical Response, Inc. is premature because the company has never made an appearance in this case despite being served with the summons in November 2018. Plaintiffs, however, have never sought to take the default of Global Medical Response, Inc. Counsel for Plaintiffs and Defendants were advised of the failure of Global Medical Response, Inc. to make an appearance in its order of January 9, 2020. The Motion for Summary Judgmen...

Excerpt: ... risk of complications from COVID-19 should be contract the virus, her in ability to see her doctor because of the COVID-19 pandemic, her inability to go to the gym or to receive massage therapy, and stress as grounds for seeking trial within 120 days. Plaintiff provides her own declaration regarding her health and a declaration from counsel setting forth the procedural history, a list of individuals for hi grist for COVID-19 from the Center for ...

Excerpt: ...er abuse (by either neglect or abandonment), or that any of these individuals engaged in any conduct that caused decedent Eugenie VanMiller's death. The demurrer by SLHC to the First Cause of Action for Elder Abuse is SUSTAINED, WITHOUT LEAVE TO AMEND. An elder abuse claim is a statutory cause of action and it must be pled with particularity. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) Plaintiff has attem...

Excerpt: ... 22, 2015. (See Second Amended Complaint, paragraphs 24-25 and 44.) RG alleges that it was to be paid a 2% transaction fee for those services. (See Second Amended Complaint, paragraph 27.) RG has been unable to locate the investment advisor agreement that it allegedly entered with Defendant, and it has attached as Exhibit A to its Second Amended Complaint "the form of agreement" that it purportedly entered with Defendant. (See Second Amended Comp...

Excerpt: ...Guild for which he is entitled to restitution (see Second Amended Complaint, paragraphs 80, 123, and 127), and he seeks an injunction preventing Defendants from continuing to (allegedly) misappropriate his intellectual property (see Second Amended Complaint, paragraphs 123 and 127.) Those allegations, if true, may support a claim for Unfair Business Practices. Such a claim can be based on a conduct that affects a single victim. (See The Rutter Gr...

Excerpt: ...hearing on this Motion will be conducted on Tuesday, August 11, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Tuesday, August 4, 2020, 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, password # 5102676935. If a ...

Excerpt: ...knowledge of a long history of violence at the San Leandro BART station; 2) the parking lot was inadequately lit; 3) the landscaping in the parking lot was improperly maintained; and 4) the security staff at the parking lot was inadequate. (FAC, p. 4.) LEGAL STANDARD "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The Court must determine "whether t...

Excerpt: ...y Exhibit B, referenced in Complaint paragraph 12, which is purportedly the Trailer Requirements currently posted on the City's website. The Court infers that Exhibit A to the Complaint may be the same document attached as Exhibit A to Plaintiff's Request for Judicial Notice, and that Exhibit B to the Complaint may be the same document attached as Exhibit 5 to the City's Request for Judicial Notice. Plaintiff alleges that the City has unlawfully ...

Excerpt: ...re January 2020; to comply with the mandatory good cause determination requirement imposed by Ordinance 11568; and to prohibit issuance of any overweight permits that allow only two tires per axle. In determining whether to issue a preliminary injunction, the Court considers two interrelated factors; (1) the likelihood that the plaintiff will prevail on the merits of his case at trial, and (2) the interim harm that plaintiff is likely to sustain ...

Excerpt: ...lass. The case preliminarily settled for a total of $1,150,000. The settlement agreement states there will be attorneys' fees of up to $383,333.33 (33.333%), costs of up to $20,000, a service award of $10,000 for each class representative, and a net PAGA payment of $18,750, and settlement administration costs of $17,000. After these expenses, the class would get $690,916. The average payout per class members would be $1,311. The settlement was me...

Excerpt: ...on Tuesday August 11, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Tuesday , August 4, 2020, 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, password # 5102676935. If a hearing is requested, the Court will advi...

Excerpt: ... 2019. However, Petitioner Nelia Hernandez ("Petitioner") - Decedent's mother -- was not informed of the details of the accident, including the cause of her son's death, until approximately October 25, 2019. Upon learning that Decedent had sustained fatal injuries after being struck by a BART train, Petitioner filed an application for leave to submit a late claim. Her application was denied on December 12, 2019. Petitioner now seeks relief to fil...

Excerpt: ...th Asian, became Plaintiff's co-supervisor, along with Harden. (SSUMF No. 4.) On July 13, 2016, Plaintiff was in a meeting with Tarin and fulfillment manager Kevin Costello. It is undisputed that during the meeting, Tarin stressed the importance of punctuality for all employees and also announced Plaintiff's shift time would be changing from 7:30 am to 9:00 am. (SSUMF No.5.) It is further undisputed that Plaintiff was frustrated by the meeting an...

Excerpt: ...Cal Physicians' Servs. (2000) 81 CalApp.4th 39, 43. The motion must be overruled if the factual allegations ... state a cause of action under any possible legal theory, regardless of the causes of action set forth in the complaint itself. Wolfe v. State Farm (l996) 46 Cal.App.554, 559. All facts are to be construed in the light most favorable to plaintiff. Perdue v. Crocker Nat'l Bank (l985) 38 Ca.3d 913, 922. But allegations which express mere c...

Excerpt: ...he Superior Court of California, Alameda County for a coordination hearing. The Court received the order and commenced this proceeding July 1, 2020. Defendant West Coast Convenience, LLC opposes the petition. Using powers delegated to him as the Supervising Judge of Complex, Judge Seligman assigned himself to serve as coordination motion judge on July 1, 2020. Having considered all papers filed in support of the petition to coordinate, the Court ...

Excerpt: ...for Production (Set One), which were due on August 23, 2019. (Declaration of Anthony Case at ¶ 4.) The court granted Defendant's motions to compel further responses and request for production of documents on February 28, 2020, ordered Plaintiffs to provide verified responses by March 6, 2020 and awarded monetary sanctions. (Declaration of Anthony Case at ¶ 10, Exhibit A.) Defendant attempted to meet and confer with Plaintiffs and received a cor...

Excerpt: ...hibits A and B to Defendant's joint declaration. However, the Court finds that Defendants unreasonably delayed in bring this Motion. Therefore, the Court ORDERS Defendants to pay Plaintiff's actual costs and legal fees incurred by Plaintiff for the preparation and filing of Plaintiff's Motion for Summary Judgment or, in the alternative, Summary Adjudication filed on 5/1/2020 in this action (the "MSJ/MSA"). The Court instructs Plaintiff at or befo...

Excerpt: ...duty to act upon a defectively served summons." (Kappel v. Bartlet (1988) 200 Cal. App. 3d 1457, 1466.) "The requirement of notice 'is not satisfied by actual knowledge without notification conforming to the statutory requirements' . . . it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place." (Id. at 1466-67.) MOT...

Excerpt: ...ff and defendant Peet's Coffee & Tea, LLC ("Peets") in opposition to the MSJ/MSA present evidence sufficient to create triable issues of material fact regarding whether defendant TGLG, Inc. dba Bloomin' Blinds ("TGLG") was an agent of Defendant as of 10/27/2016 when TGLG last serviced the at-issue window shade. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, the hearing on this Motion will be conducted on Tuesday, August 4, 2020 at 9:00 a.m...

Excerpt: ...16/2020 hearing date. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, the hearing on this Motion will be conducted on Tuesday, August 4, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 p.m. on Friday, July 31, 2020 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 like...

Excerpt: ...ection with the commencement and prosecution of such action." (Cal. Civ. Code § 1794(a).) A prevailing buyer has the burden of "showing that the fees incurred were 'allowable,' were 'reasonably necessary to the conduct of the litigation,' and were 'reasonable in amount.'" (Nightingale v. Hyundai Motor Am. (1994) 31 Cal. App. 4th 99, 104.) "The plain language of the statute allows only for the recovery of attorney fees which have been 'reasonably...

Excerpt: ...ection with the commencement and prosecution of such action." (Cal. Civ. Code § 1794(a).) A prevailing buyer has the burden of "showing that the fees incurred were 'allowable,' were 'reasonably necessary to the conduct of the litigation,' and were 'reasonable in amount.'" (Nightingale v. Hyundai Motor Am. (1994) 31 Cal. App. 4th 99, 104.) "The plain language of the statute allows only for the recovery of attorney fees which have been 'reasonably...

Excerpt: ...for pro per parties and for the forensic accountant. Prior approval not required to appear via CourtCall. Contact CourtCall, an independent vendor, at least three business days before the scheduled conference. Call 1-888-882-6878, or fax a service request to (888) 882-2946. If you are representing yourself or your are the forensic accountant you should advise CourtCall that the court has waived fee for this appearance. The following is the Court'...

Excerpt: ...0 for each of three class representatives, a net PAGA payment of $30,000, and settlement administration costs of up to $13,000. After these expenses, the class would get approximately $490,000. The average payout per class members would be approximately $828. The settlement was mediated with the assistance of Jeffrey L. Krivis. The court gives "considerable weight to the competency and integrity of counsel and the involvement of a neutral mediato...

Excerpt: ...to expunge the notice." (CCP § 405.30.) "The claimant shall have the burden of proof[.]" (Id.) "[T]he court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim." (CCP § 405.31.) "Real property claim" means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) th...

Excerpt: ...efendant FFE Transportation Services ("FFE"). Two discovery motions are presently before the Court, both involving Plaintiff's request to inspect one of the tires from the tractor involved in the accident. On May 28, 2020, Plaintiff filed a motion to compel further response and production of tangible item, seeking an order requiring Defendant to produce for inspection one of the tires on the tow truck that allegedly caused the accident. On July 2...

Excerpt: ...d for all purposes to the Honorable Delbert C. Gee. There has been a substantial number of motions filed by both sides in this case, including challenges to the pleadings. For the purposes of this motion, the parties ask the Court to review Judge Gee's order of August 14, 2015 granting the Motion of Defendants Sipi Metals Corp. and Marion Cameron ("the Chicago Defendants") to Dismiss for Lack of Personal Jurisdiction. Judge Gee determined that Pl...

Excerpt: ... Cross-Defendant allegedly performed all or nearly all of the work before Cross-Complainants terminated him in December 2017 for failure to comply with the terms of the contract. Cross-Defendant submitted invoices to Cross-Complainants that total $276,808.87. Cross-Complainants paid Plaintiff $173,355.75. Plaintiff Meurer filed his Complaint on May 10, 2018. Defendants filed their Cross-Complaint against Meurer on July 27, 2018. The Court set the...

Excerpt: ...) Following the accident, Plaintiff released his vehicle to Defendant with the expectation that the vehicle would be repaired. (FAC, para. 4.) At some point, it appears Defendant attempted to return the vehicle to Plaintiff. (FAC, para. 8 (alleging Farmers "threaten[ed] to drop off plaintiff's vehicle at his place of residence.") LEGAL STANDARD "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader...

Excerpt: ...2006) 138 Cal.App.4th 1371, 1377-1378; and Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1057-1058. Defendant also correctly contends that Plaintiff has not alleged facts sufficient to establish that it owed Plaintiff a duty of care when it accepted for deposit unendorsed checks made payable to Plaintiff's principals. See Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 543 (number of situations were a bank would owe a non-...

Excerpt: ...e complaint or cross-complaint against him[;] [and/or] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy w...

Excerpt: ...will be conducted on Wednesday July 29, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Friday, July 24, 2020, 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, password # 5102676935. If a hearing is requested, the ...

Excerpt: ...l. App. 3d 486, 488-89.) A court's discretion is usually exercised liberally to permit amendment of the pleadings, and it is a rare case in which denial of leave to amend can be justified. (See, e.g., Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) "[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment." (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 76...

Excerpt: ...lleges the defects inherent in the clamps were well-known to those in the construction industry. In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or mal...

Excerpt: .... fka Art.com Inc. in which two additional directors were appointed and a Special Litigation Committee was formed. Plaintiffs have not followed the procedure contemplated by § 709, which requires the filing of an "action" by a shareholder who claims to have been denied the right to vote, and that upon the filing of such a "complaint", and before any further proceedings can be held, the court shall enter an order fixing the date for the hearing f...

Excerpt: ... Decl., para. 10, Ech. C.) Thereafter, Plaintiff mailed Defendant monthly statements. (Rowe Decl., Exh. C.) Plaintiff asserts that on or about March 9, 2016, Plaintiff ceased making payments towards her balance. ((Rowe Decl., para. 12.) Plaintiff contends the balance due and owing on Defendant's account is $13,846.27. (Complaint, para. 10.) Plaintiff's verified Complaint, filed on July 22, 2019, pleads causes of action for: 1) breach of contract;...

Excerpt: ...at the project. Plaintiff OUSD filed this action against Cal-Pac on February 17, 2017. Cal-Pac filed a Cross-Complaint against La Paz and other subcontractor parties, on May 1, 2017. INTERSTATE'S APPLICATION FOR GOOD FAITH SETTLEMENT "Any party to an action in which it is alleged that two or more parties are joint tortfeasoror co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into...

Excerpt: ...osing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) The general venue statute states that "[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings . . . the superior court in the county where the defendants or ...

Excerpt: ...t 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. section 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 if, and only if, the evidence would allow a ...

Excerpt: ...aintiff to file a Third Amended Complaint. The request was granted. The trial date at the time was October 7, 2019. In August 2019, Defendants filed a Motion to Continue Trial. The motion was based on Defendants' intent to file a Motion for Summary Judgment prior to trial. The motion was granted, and the trial date was continued to October 26, 2020. Plaintiff then filed his Fourth Amended Complaint on November 4, 2019, after the Court granted Def...

Excerpt: ... conducted on Tuesday, July 28, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Tuesday, July 21, 2020, 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, password # 5102676935. If a hearing is requested, the Court w...

Excerpt: ...Plaintiff on February 18, 2020. The demurrer by Defendants Saybrook and TCS to the First Cause of Action for Breach of Contract, is SUSTAINED WITH LEAVE TO AMEND as to defendant Saybrook under C.C.P. 430.10(f) and WITH LEAVE TO AMEND as to defendant TCS under C.C.P. 430.10(e). First, after sustaining the first demurrer, Plaintiff still has not alleged facts that would make TCS liable for the breach of a contract that it is not a party to. Althoug...

Excerpt: ...ch the court shall grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[, and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes ...

Excerpt: ...he declaration of David Cumes M.D. in place of Dr. Eisenberg's declaration. The declaration, which does not state any of Dr. Cumes' qualifications or specialty and does not state that Dr. Cumes examined or evaluated Plaintiff. The declaration merely states that Dr. Cumes is a medical doctor and that Dr. Cumes "personal observation" on January 31, 2020 that "Dr. Krippner made me aware of his recent hospitalization...the chronic pain he suffers as ...

Excerpt: ...t. (2020) 9 Cal.5th 279 regarding whether Defendants are entitled to a jury trial, would accommodate the ends of justice or promote the orderly conduct of these proceedings. (OTO, LLC v. Kho (2019) 8 Cal.5th 111, 141.) As plaintiff People of the State of California ("Plaintiff") states in Opposition, Defendants' requested continued stay differs from the previous stay granted by the Court during the pendency of Plaintiff's appeal in the California...

Excerpt: ...ion any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." (CCP § 2025.450(a).) In this personal injury action, Plaintiff alleges that she was injured by Gard...

Excerpt: ...ading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of the proceeding[.]" (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 488-89.) A court's discretion is usually exercised liberally to permit amendment of the pleadings, and it is a rare case in which denial of leave to amend can be justified. (See, e.g., Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) "[I]t is an abuse of di...

Excerpt: ...sition of the action in his absence may . . . leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest." (CCP § 389(a).) "If he has not been so joined, the court shall order that he be made a party." (Id.) If the person "cannot be made a party, the court shall determine whether in equity and good conscience the action should proce...

Excerpt: ...6 days either prior to the current 7/27/2020 hearing date or the continued 8/31/2020 hearing date. The Court was unable to find any proof of service or evidence of that Plaintiffs have provided proper notice of the final approval hearing on the LWDA. The Court ORDERS Plaintiffs to file a supplemental declaration and/or proof of service at least five (5) days in advance of the continued 8/31/2020 hearing date, evidencing timely service of the Moti...

Excerpt: ...ction with prior discovery motions on six occasions. Defendants have advised the Court that Plaintiff has not yet paid any portion of the $6,190.00 that she has been ordered to pay. The Court notes that counsel for Plaintiff attached a personal check in the sum of $5,200.00 made payable to Gordon Rees, et al. with the courtesy copy of her opposition to the motion. The Court does not understand why Ms. Parker did not transmit the check to Defendan...

Excerpt: ...s against Defendant barred by an exclusive workers compensation remedy under Privette v. Superior Court (1993) 5 Cal.4th 689 and Melendez v. Ameron International (2015) 240 Cal.App.4th 632. Further, the Court finds that Defendant has not met its initial burden to produce evidence showing that there are no disputed issues of material fact with respect to Defendant's Motion for Summary Adjudication of Plaintiffs' punitive damages claim. LEGAL STAND...

Excerpt: ...settlement agreement states there will be attorneys' fees of up to $3,750,000 (30%), costs of up to $35,000, a service award of $25,000 for each class representative, and a net PAGA payment of $37,500, and settlement administration costs of $19,850. After these expenses, the class would get $8,607,650. The average payout per class members would be $5,738. The settlement was mediated with the assistance of Tripper Ortman. The court gives "consider...

Excerpt: ...sition of the action in his absence may . . . leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest." (CCP § 389(a).) "If he has not been so joined, the court shall order that he be made a party." (Id.) If the person "cannot be made a party, the court shall determine whether in equity and good conscience the action should proce...

Excerpt: ...fn. 2.) Therefore, Defendant's motion for summary adjudication of the punitive damage claims is GRANTED. Defendant's motion for summary judgment is DENIED for the reasons set forth below. Plaintiffs contend that plaintiff Robert G. Fenstermacher was exposed to respirable asbestos fibers from Defendant's asbestos-containing steam traps while serving in the U.S. Navy aboard the U.S.S. Bon Homme Richard from 1965 to 1967. LEGAL STANDARDS FOR MOTIONS...

Excerpt: ...e et al (Plaintiffs') shall not attempt to introduce the 1990 Dore Letter, as defined hereinbelow, into evidence at trial, deposition or via Motion and is otherwise prohibited from using or referring to the 1990 Dore Letter in any manner or for any purpose during the course of this litigation. Plaintiffs do not dispute that the 1990 Dore Letter contains attorney-client and attorney work product privileged communications. Instead, Plaintiffs conte...

Excerpt: ...an expert[;] (b) [s]ubmit an expert witness declaration[;] (c) [p]roduce reports and writings of expert witnesses[;] (d) [m]ake that expert available for a deposition[.]" (CCP § 2034.300.) MOTION Plaintiffs ask that the Court issue an order permitting the deposition of John Templin ("Templin"), Plaintiffs' expert in industrial hygiene, even though expert discovery has closed. Plaintiffs identified Templin as one of its experts in the field of in...

Excerpt: ...ion any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." (CCP § 2025.450(a).) In this personal injury action, Plaintiff alleges that she was injured by Gard...

Excerpt: ... filed under seal only if it expressly finds facts that establish: (1) [t]here exists an overriding interest that overcomes the right of public access to the record; (2) [t]he overriding interest supports sealing the record; (3) [a] substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) [t]he proposed sealing is narrowly tailored; and (5) [n]o less restrictive means exist to achieve the ove...

Excerpt: ...In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) "The presumption is, in the absence of an affirmative showing in that particular, that the county in which the title of the action shows that it is brought is, prima facie, the proper county[.]" (Quick v. Co...

Excerpt: ...llectively, "Defendants") Motion to Compel Plaintiffs Steven J. Watts ("Mr. Watts") and Cindy L. Watts (collectively, "Plaintiffs") a Compliant Privilege Log is CONTINUED to 10:00 AM on 08/14/2020 in Department 18, Civil Law and Motion, Administration Building, 1221 Oak Street, Oakland. "If an objection [to an inspection demand] is based on a claim of privilege or a claim that the information sought is protected work product, the response shall p...

Excerpt: ... 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 doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) Further, "the court may in its discretion grant a motion for preference that is supported by a...

Excerpt: ...s she purchased audio equipment from Sonos "starting in 2015." (Complaint, para. 8.) Plaintiff alleges the equipment had a variety of defects and that "[o]ver the last four years Plaintiff has needed to call tech support likely in excess of 50 times." TIMELINESS OF DEMURRER The Complaint in this matter was served on Defendant on February 21, 2020. The deadline for Defendant to file a responsive pleading fell after the Court was closed as a result...

Excerpt: ...x Costs with respect to Defendant's Memorandum of Costs filed 6/9/2020, but not served on Plaintiffs until 6/22/2020. LEGAL STANDARDS FOR MOTIONS FOR RELIEF FROM DEFAULT Under Code of Civil Procedure section 473(b), "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or...

Excerpt: ...fn. 2.) Therefore, Defendant's motion for summary adjudication of the punitive damage claims is GRANTED. Defendant's motion for summary judgment is DENIED for the reasons set forth below. Plaintiffs contend that plaintiff Robert G. Fenstermacher was exposed to respirable asbestos fibers from Defendant's asbestos-containing steam traps while serving in the U.S. Navy aboard the U.S.S. Bon Homme Richard from 1965 to 1967. LEGAL STANDARDS FOR MOTIONS...

Excerpt: ...id- to late-1970's, was exposed at construction sites on which he worked to respirable asbestos fibers from asbestos- containing stucco and fireproofing manufactured and/or furnished by Defendant to plastering and other contractors, including, inter alia, Joel McCray and Thomas F. Scollan. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended ...

Excerpt: ...produce responsive documents pursuant to that Request for Production of Documents. Plaintiff states that PPILP initially responded to this discovery on April 29, 2019 by objecting to every request on the grounds of lack of jurisdiction over PPILP and asserting that the requests are overly broad and burdensome and not reasonably calculated to lead to the discovery of relevant, admissible evidence. PPILP produced no documents. Plaintiff states that...

Excerpt: ...protective orders." (CCP § 1987.1(a).) "In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person." (Id.) "[D]iscovery statutes are to be construed broadly in favor of disclosure, so as to uphold the right to discovery whenever possible." (Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, 1249.)...

Excerpt: ...trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; or (3) a demand for judgment requesting relief...

Excerpt: ...re not authorized by CCP § 1033.5(a). In all other respects, the Court DENIES the Motion. The Court ORDERS that Defendant shall have as costs of suit against Plaintiffs the total amount of $2,104. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Thursday, July 23, 2020, contesting party must email [email protected] and provide notice to all counsel via File&ServeXpress of the intent to contest the tentati...

Excerpt: ...nt Comerica Bank brings this Petition to Vacate Arbitration Award on the grounds that the arbitrator in this action (hereinafter "Arbitrator") made material omissions and misrepresentations in the initial disclosures and continuing disclosures he was required to provide to the parties as to any grounds for disqualification in violation of California's legal disclosure rules set forth in the California Arbitration Act, California's Ethics Standard...

Excerpt: ... opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) "The presumption is, in the absence of an affirmative showing in that particular, that the county in which the title of the action shows that it is brought is, prima facie, the proper county[.]" (Quick v. Cors...

Excerpt: ...ff's counsel is admonished to file separate oppositions for each motion in all future filings. STANDARD OF LAW "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an orde...

Excerpt: ...ED IN PART. The Motion of plaintiffs for discovery sanctions against BLG is GRANTED IN PART. BACKGROUND On 8/6/10, plaintiffs filed the complaint against Brachfeld and BLG (collectively, "BLG") as well as Midland Funding, LLC, Midland Credit Management, LLC and Midland Funding NCC-2 Corp. (collectively, "Midland "). Midland purchases defaulted debt and makes effort to collet that debt. BLG is a law firm, but it allegedly sent dunning letters and ...

Excerpt: ...ration with the required information. The court's pre-tentative decision is: The motion of plaintiffs for preliminary approval of class action settlement is [GRANTED]. The complaint alleges claims on behalf of hourly employees and asserts claims for Labor Code violations. There are approximately 3,215 members of the class. The case preliminarily settled for a total of $2,700,000. The settlement agreement states there will be attorneys' fees and c...

Excerpt: ... no prejudice to the other parties in a case. DEMURRER The Demurrer of Warrantech to the first amended complaint is OVERRULED. The first amended complaint filed 1/8/20 alleges that Plaintiff purchased a DJI Phantom 4 drone from a third party seller Beach Camera through the Amazon website and at the same time purchased a warranty for the drone from Warrantech through the Amazon website. Plaintiff asserts claims against Warrantech for (1) violation...

Excerpt: ... conducted on Tuesday, July 28, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM on Tuesday, July 21, 2020, 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, password # 5102676935. If a hearing is requested, the Court w...

Excerpt: ...California, and that Saks does not provide the warnings required by law. Saks filed a demurrer arguing that it is a "retail seller" and that the complaint does not allege facts that support a claim against a "retail seller" or clearly allege a permissible claim against a "retail seller." The demurrer presents legal issues of statutory construction and pleading standards that must be resolved and then applied to the complaint. GENERAL PLEADING STA...

Excerpt: ...the application of res judicata and injunctive relief claim. IT IS ORDERED THAT Plaintiff file and serve an amended complaint that complies with applicable court rules and rules of civil procedure no later than twenty-one (21) days from the date of this Order. As a threshold matter, Plaintiff's counsel improperly served a single opposition to all three motions set to be heard on July 22, 2020. Plaintiff's counsel is admonished to file separate op...

Excerpt: ...ant. The Court merely notes in the text of this ruling that Martensen owns property adjacent to property owned by Cross- Complainant Yu in the Oakland hills. Cross-Complainant Singh is Yu's business partner and the construction project manager at 80 Roble Road. The Yu property is located downhill from the Martensen property. Martensen commenced his action on December 3, 2019 to indicate his rights under a view easement granted by the former owner...

Excerpt: ...ons under numerous Labor Code provisions in its relationship with non-exempt employees. Plaintiff defines the term "aggrieved employees" as current or former hourly-paid or non-exempt employees who worked for Mattson during the period from November 12, 2018 to February 3, 2020. Plaintiff attached a copy of her November 12, 2019 notice of intent to file PAGA claim delivered to the Labor & Workplace Development Agency ("LWDA") to the Complaint. Def...