Excerpt: ...) 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 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. (e) Notwithstanding any other provision of law, the court...

Excerpt: ...try of this Order, as modified for method of service by Code of Civil Procedure section 1013. This action involves, in Plaintiff's words, "a serious trip-and-fall injury caused by an unmarked 3 inch high protruding section of sidewalk at the intersection of 12th and Jackson Streets immediately adjacent to a large 5 story structure in . . . [downtown] Oakland. . . . caused by invasive roots from an adjacent tree." (Pltf.'s Opp., p. 4.) Plaintiff a...

Excerpt: ...try of this Order, as modified for method of service by Code of Civil Procedure section 1013. This action involves, in Plaintiff's words, "a serious trip-and-fall injury caused by an unmarked 3 inch high protruding section of sidewalk at the intersection of 12th and Jackson Streets immediately adjacent to a large 5 story structure in . . . [downtown] Oakland. . . . caused by invasive roots from an adjacent tree." (Pltf.'s Opp., p. 4.) Plaintiff a...

Excerpt: ...ants", plural, did. Plaintiffs' failure to allege what each of the moving Defendants did or differentiate between them makes her claims against each of them uncertain. Second, as to Plaintiff's First Cause of Action for Elder Abuse, Plaintiff must clearly allege facts demonstrating that the moving Defendants had the responsibility for for meeting the basic needs of decedent, and that they denied or withheld goods or services necessary to meet the...

Excerpt: ...e and scope. The Court finds these objections to be valid. Though the scope of discovery is broad, ICT has not sufficiently demonstrated how this Interrogatory seeks information that may lead to the discovery of admissible evidence. The reasons for compelling a further response, set forth in the separate statement, do not include facts showing the potential relevance of each and every one of Plaintiff's customers over a fifteen year period of tim...

Excerpt: ..., 2020, only seven (7) court days before the hearing. See CCP § 1005(b). The late opposition papers were sent to Defendant's attorney by overnight delivery on Saturday, February 1, 2020. The Court notes that Plaintiffs' counsel filed his papers in opposition to Defendant's first Motion to Quash only three (3) court days before the hearing. The late opposition was noted in the December 19, 2019 order. The fact that the Court considered the opposi...

Excerpt: ...en the action was first filed in 2012. The Court was then forced to vacate the December 9, 2019 trial date after it granted the motion in part with leave to amend. Defendants now claim that it would be unfair to require them to start trial without an opportunity to depose Plaintiff regarding the new facts. The Court disagrees. First, the Court rejects Defendants' contention that Plaintiff is required to include all evidentiary facts in his pleadi...

Excerpt: ...hanna and Bounprakob to Comply with Deposition Notice. The Court also imposed monetary sanctions against Defendants in the aggregate sum of $3,000.00. The Court takes judicial notice of the three discovery orders. Plaintiff has filed this Motion for Terminating Sanctions based upon Defendants' asserted willful failure to obey any of the orders. Plaintiff contends that Defendants paid only $1,000.00 of the $3,000.00 awarded. Defendants' failure to...

Excerpt: ...mplaint and Plaintiff's evidence, the Court declines to issue the requested injunction because he has not shown that a reasonable probability exists that he will prevail on the merits of his claims. See Costa Mesa City Employees' Ass'n v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309 (court lacks discretion to grant an injunction if no reasonable probability of success is shown); and San Francisco Newspaper Printing Co., Inc. v. Superior Cou...

Excerpt: ...t 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 that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that ...

Excerpt: ...cts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading 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 ...

Excerpt: ...onliffe (1994) 7 Cal.4th 634, 638.) The trial court also may consider matters of which 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.) A demurrer can be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank, supra, 39 Cal.3d at p...

Excerpt: ... that Shaun Ferderer, an "Alameda County Firefighter," was injured on May 7, 2018, when the ambulance he was in entered an intersection in Hayward against a red light and collided with a vehicle driven by Defendant Luis Carlos Salazar, Jr. and rolled over. Lauren Ferderer has filed a loss of consortium claim. Plaintiffs claim that their injury was proximately caused by the negligence of Salazar and the driver of the ambulance, Kendyl Marie Post. ...

Excerpt: ...m the FAC allegations related to punitive damages, emotional distress damages, and "medical, incidental, and service" damages. (See CCP §§ 435, 436.) The overwhelming majority of Defendants' arguments here contend that Plaintiff's various requests for damages are barred by the mediation privilege. As the Court has already addressed at length in its Order regarding Defendants' demurrer, the mediation privilege is an evidentiary privilege and it ...

Excerpt: ...reditors oppose this motion but concede that they will not inquire into any communications between Adams and either J&H or National Fire. Adams moves to join the motion. Because her motion seeks the same relief based on the same facts and law, her request for joinder is GRANTED. Depositions of opposing counsel are presumptively improper and require a showing of "extremely good cause." (Carehouse Convalescent Hosp. v. Superior Court (2007) 143 Cal...

Excerpt: ... elements of these causes of action as a matter of law. Plaintiffs' Opposition to the MSA does not address Defendant's contentions, except to state in response to each of Defendant's Undisputed Material Facts Nos. 1-44, "Plaintiffs hereby waive their [third/fourth] cause of action for [negligent misrepresentation/fraud by nondisclosure.]" Therefore, the MSA with respect to Plaintiff's Third and Fourth Causes of Action is GRANTED. With respect to ...

Excerpt: ...ther trustee's sale, pending resolution of this case or further order of the court. In this action, Plaintiff alleges that he owns real property at 936 Bayview Avenue, Oakland, California. Plaintiff alleges that in 2001, he borrowed money secured by a deed of trust on the property. Plaintiff alleges that Defendant U.S. Bank is the assignee of the deed of trust, and U.S. Bank has hired Fay Servicing to service the loan. Plaintiff alleges that he d...

Excerpt: ...m the FAC allegations related to punitive damages, emotional distress damages, and "medical, incidental, and service" damages. (See CCP §§ 435, 436.) The overwhelming majority of Defendants' arguments here contend that Plaintiff's various requests for damages are barred by the mediation privilege. As the Court has already addressed at length in its Order regarding Defendants' demurrer, the mediation privilege is an evidentiary privilege and it ...

Excerpt: ...ion began as an auto-accident personal injury case in Sacramento County Superior Court on November 13, 2018. On December 13, 2018, the plaintiff amended her complaint and named the Judicial Council as a defendant, asserting a right to declaratory relief regarding the validity of the nonrefundable jury demand fee set by CCP section 631, subdivision (b). Relief in this case also turns on the validity of that enactment. On May 16, 2019, the Dayoun p...

Excerpt: ...mely service on Plaintiff at his address of record, and Plaintiff has not timely submitted any written opposition. The Court finds AC Transit's meet and confer efforts adequate. The demurrer demonstrates that Plaintiff's Complaint, filed on October 25, 2019, does not state facts sufficient to constitute a cause of action and is uncertain, including for the following reasons: First, a complaint must contain "a statement of the facts constituting t...

Excerpt: ...aintiffs' claims. The current allegations do not include facts comprising the elements of a cause of action on any of the thirteen legal theories named in the Complaint, and demurrer to each cause of action is warranted. (C.C.P. § 430.010(e).) In addition, as Defendant points out, the Complaint as a whole is uncertain, in that it fails to comply with CRC 2.112 by specifically stating, for each cause of action, "the party asserting" the cause of ...

Excerpt: ... Cal.4th 962, 966-967. The Court is permitted to consider only the facts pled in the Complaint and facts subject to judicial notice. See CCP § 430.30(a). Defendant should instead file a Motion to Compel Arbitration. The Court would then be permitted to consider the parties' evidentiary submissions and determine whether Plaintiff's objections to the process of appointing an arbitrator have merit. However, Defendant's Demurrer to the Fourth Cause ...

Excerpt: ...nnot be completed while the unit is occupied, if the landlord has obtained all necessary permits prior to giving the tenants notice to vacate and thereafter makes the repairs without unnecessary delay. Plaintiffs fail to allege facts implicating § 8.22.260(a)(10). They did not vacate their apartment as a result of a notice to vacate after Defendants had obtained permits to make repairs. Rather, they vacated their apartment as a result of a fire....

Excerpt: ...to alternative dispute resolution . . . ." The demurrer is OVERRULED for several reasons: First, section 5930(a) applies to members of the association and the association itself. Section 5930(a) does not apply here because Respondent and Co-Respondent Raj Patel (who does not appear to be a party to the demurrer) are not alleged by the Petition to be members of the association. Neither are they alleged to be "the" association itself. Thus, section...

Excerpt: ... September 6, 2016, and that during that transportation he was not certain whether the pain he was experiencing was caused by Falck's manner of transportation or by his injuries from his prior car accident. But this is not a "new" fact, because Plaintiff has been aware of his automobile accident since August 24, 2016. Plaintiff could have - but did not - clarify his understanding of the injuries he suffered, and when learned of them, in his origi...

Excerpt: ...itution by buying the vehicle back from him or providing an acceptable replacement. As the moving party, Defendant Mercedes-Benz USA, LLC bears the initial burden of producing sufficient admissible evidence to make a prima facie showing that no triable issues as to any material facts exist and that it is entitled to judgment as a matter of law. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. "A prima facie showing is one that is...

Excerpt: ...ortions of the First Amended Complaint on October 31, 2018. On December 10, 2018, the Court set the matter for a jury trial commencing on July 6, 2020. Plaintiff Bonner alleges that Defendant breached the terms of the insurance agreement when it denied his first-party loss claim. Plaintiff alleges that on April 2, 2016, an unknown individual forcibly took his 2015 Mercedes Benz CLS63 while he was parked on the street in Oakland. Plaintiff, who wo...

Excerpt: ...mages. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Instead, there must be "sufficient facts alleged to support the allegation" that the defendant was guilty of "malice" within the meaning of the statute. (Id., at pp. 6-7; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 ["the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of 'oppr...

Excerpt: ...e process of being transferred from the County of Mendocino to the County of Alameda at the time the subpoenas issued. Thus, Petitioners were not unreasonable in their actions. Importantly, the Superior Court is one state court organized into branches by county. (See San Joaquin Drainage Dist. v. Sup. Ct. (1925) 196 Cal. 414, 432.) Thus, Respondent's perception of Mendocino County's Court as being an entirely separate court is false. Also, the ma...

Excerpt: ...d to be a California Professional Corporation; and Camico Mutual Insurance Company ("Camico"). Defendants state in their moving papers that all of the Complaint's other causes of action have settled with respect to the other named defendants, such that only the Fourth Cause of action for Indemnity brought solely by plaintiff Capelli against Defendants remains at issue. MOTION FOR JUDGMENT ON THE PLEADINGS STANDARDS A motion for judgment on the pl...

Excerpt: ... Cal.App.5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (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 ...

Excerpt: ...t those findings "signified a material weakness," and that omitting them would lead to a material misstatement in Defendant's financial statements and thus would violate the law. (See Complaint, paragraphs 22 and 24-25.) Shortly after submitting the audit report, Plaintiff was notified on September 22, 2016 that his position would be eliminated effective December 31, 2016, and he was in fact officially terminated on January 3, 2017. (See Complain...

Excerpt: ...ue an insurer directly for the torts of its insured. (Mel H. Binning, Inc. v. Safeco Ins. Co. (1977) 74 Cal.App.3d 615, 619; see also Coleman v. Gulf Ins. Group Co. (1986) 41 Cal. 3d 782, 794-795 [discussing third part bad faith claims].) Here, Defendant Forget is CSAA's insured. Accordingly, here, Plaintiff's causes of action brought against CSAA as an insurer cannot be maintained. The demurrer to each and every cause of action brought against C...

Excerpt: ...l services provided to Azure Sky Dufaux and Devon Dufaux in state court litigation matters. HLF asserts that AGLLC guaranteed that debt. HLF concedes that it has recovered two vehicles owned by AGLCC, valued at $38,269. In this action, HLF seeks to recover the remainder owed from AGLCC and/or Defendant Argentum Properties, LLC ("Argentum"). HLF contends that the bankruptcy trustee has asserted that all claims held by AGLLC have become property of...

Excerpt: ...es ("ACC") requests to join in Respondents' demurrer. Neither Respondents nor the City has opposed ACC's request to join in the demurrer. For the reasons discussed below, ACC's request for joinder is GRANTED. The joint demurrer is SUSTAINED IN PART WITHOUT LEAVE TO AMEND as to the PC's second cause of action and OVERRULED as to its third cause of action. JOINDER Although a joinder to another party's motion is not provided for in the Code of Civil...

Excerpt: ...an Campus Communities, American Campus Communities Services, Inc., and American Campus Communities Operating Partnership, L.P. (together, "ACC"). CHF and ACC also demur on similar grounds. SBN opposes all demurrers. For the reasons discussed below, Respondents' demurrer is OVERRULED. CHF and ACC's demurrers are SUSTAINED WITHOUT LEAVE TO AMEND. ELECTRONIC AND PERSONAL SERVICE CHF attempted to serve its moving papers by e mail and U.S. Mail. (See ...

Excerpt: ...t her appropriately during her lawsuit against her ex-husband, with her causes of action largely stemming from attorney malpractice. That prior case involved a mediation. Defendants argue on demurrer that each of Plaintiff's causes of action is barred by the mediation privilege of Evidence Code section 1115 et. seq. However, the mediation privilege is an evidentiary privilege. A demurrer does not adjudicate whether a plaintiff will be able to pre...

Excerpt: ...t production included 80,000 responsive emails and attachments, which were not previously produced. Plaintiffs state that these emails contain historic financial information, which Plaintiffs assert are relevant to their damages calculation. Plaintiffs contends its experts need to review and incorporate the newly-discovered information into their expert opinions on damages. Plaintiffs requested that the deadline be extended to January 29, 2020 (w...

Excerpt: ...cation 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 more defendants either owe...

Excerpt: ... rather than the 30 days required by section 598, but the motion to bifurcate was filed on December 20, 2019, and Plaintiff opposed RCB's ex parte application to hear the motion on shortened time. The court finds that Plaintiff is not prejudiced by the delay in seeking bifurcation, and that any prejudiced is outweighed by the potential for increased efficiency and reduction of potential prejudice to RCB resulting from bifurcation. RCB has made a ...

Excerpt: ...to resolve the action. Plaintiff Kim Embry's unopposed Motion to Approve Proposition 65 Settlement and Consent Judgment is GRANTED. The Court finds the Consent Judgment ("CJ") meets the criteria established by Health and Safety Code section 25249.7, in that: (A) the standards required by the CJ complies with Health & Safety Code sections 25249.6 and 25249.10(c); (B) the CJ requires a clear and reasonable warning in compliance with Health & Safety...

Excerpt: ...ment that LJ Jennings and Karen Jennings appear for deposition on the same date. Plaintiff brought this action against Defendants Kingdom Builders Christian Fellowship Ministries ("Kingdom Builders"), LJ Jennings, and Karen Jennings based upon a claim that Kingdom Builders breached a commercial lease agreement for a property located in Oakland, California (the "Property"), and LJ Jennings personally guaranteed payment of all delinquent rent oblig...

Excerpt: ...e and scope. The Court finds these objections to be valid. Though the scope of discovery is broad, ICT has not sufficiently demonstrated how this Interrogatory seeks information that may lead to the discovery of admissible evidence. The reasons for compelling a further response, set forth in the separate statement, do not include facts showing the potential relevance of each and every one of Plaintiff's customers over a fifteen year period of tim...

Excerpt: ... Sacramento, Paul Blanco's Good Car Company Stockton, Paul Blanco's Good Car Company Reno, and Paul Blanco's Good Car Company Las Vegas, and Paul Blanco's (collectively, "Defendants") Motion to Quash Deposition Subpoenas for Production of Business Records is GRANTED. Defendants seek an order quashing ten deposition subpoenas for production of business records (collectively, the "Subpoenas") propounded by Plaintiff The People of the State of Calif...

Excerpt: ... Sacramento, Paul Blanco's Good Car Company Stockton, Paul Blanco's Good Car Company Reno, and Paul Blanco's Good Car Company Las Vegas, and Paul Blanco's (collectively, "Defendants") Motion to Stay Civil Proceeding Pending Expiration of Statute of Limitations is DENIED. Defendants' Motion to Stay the Taking of Any Discovery Against Defendants is DENIED. Defendants ask the Court for an order staying this action until the expiration of any applica...

Excerpt: ...ter 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 order of the court." (CCP § 436.) Plaintiff seeks an order striking Defendants Paul Blanco's Good Car Company Auto Group, Paul Blanco Management Company, Paul Blanco Insurance Agency, Inc., Paul Blanco Vehicle Registration, Paul Blanco's Good Car Company Bakersfield, Paul Blan...

Excerpt: ...le 2.550(c).) "The court may order that a record be 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) [...

Excerpt: ...yment to the LWDA of $37,500 and administration costs of $10,000 were all deducted, leaving a balance of $1,513,014.77 to be distributed to class members. Further, pursuant to the Court's final approval of class settlement order, $80,000 of the attorneys' fees award (10%) was held back until settlement funds had been fully distributed to class members. Pursuant to the Declaration of Melissa E. Baldwin, Director of Claims Administration for RG/2 C...

Excerpt: ...ement" between plaintiff ABC Wholesale, Inc. ("ABC"), a corporation apparently controlled by Young, and BAS; and (2) a "Bay Area Seafood/ABC Wholesale Sales Representative Agreement between BAS and Young individually. DEMURRER STANDARDS "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.) "As a general rule in testing a pleading against a demurrer the ...

Excerpt: ... in stop-and-go traffic on northbound I-880 less than a mile south of the Marina Blvd. exit. Plaintiff's BMW was pushed into the car ahead of them, resulting in that car being pushed into a fourth car. Plaintiff Samuel Caasi was driving. Raquel is Samuel's wife. She was in the passenger seat. They have sued BMW because the airbags on their vehicle failed to deploy. These were Takata airbags. Samuel's head allegedly struck the steering wheel. Raqu...

Excerpt: ...award of $5,000 for each class representative, and a net PAGA payment of $15,000, and settlement administration costs of $14,500. After these expenses of 214,500, the class would get $325,500. The moving papers state the average payout per class members would be $436. (Opening at 8:17) This suggests minimal litigation costs. The settlement was mediated with the assistance of Judge Enrique Romero (Ret). The court gives "considerable weight to the ...

Excerpt: ...tiff alleges there was an agreement he would pay for the property by accepting a reduced salary working for Defendants for a period of time. (See SAC, ¶¶ 9-20.) Plaintiff did work for Defendants and has occupied the property. (See SAC, ¶¶ 17, 18.) Plaintiff alleges Defendants have refused to honor the agreement and misrepresented their intentions to him. (See, e.g., SAC, ¶ 31.) Defendants now demur to the SAC. First, Defendants' demurrer suf...

Excerpt: .... Inc. The case was referred to mediation, and notice of a settlement was filed in February 2018 and then withdrawn. Eventually, a settlement was reached and American Honda was dismissed on December 10, 2018. Defendant OAC was added by Doe amendment on November 15, 2018. Defendant OAC never appeared and default was entered. A prove-up hearing was scheduled for April 19, 2019, and continued twice at the request of counsel to June 28, 2019. On June...

Excerpt: ...orneys' fees of up to $75,000, costs of up to $15,000, a service award of $7,500 for the class representative, settlement administration costs of $10,000, and a PAGA payment to the LDWA of $3,750. After these expenses of $111,250, the class would get $113,750. This is an average of $1,186 per class member. The settlement was mediated with the assistance of Francis Ortman. The court gives "considerable weight to the competency and integrity of cou...

Excerpt: ...y with Health & Safety Code § 1363.1(b). The Court rejects Plaintiffs' argument and determines that the arbitration notice in the enrollment form signed by Plaintiff Gabriella Ilinestky was "prominently displayed" in compliance with § 1363.1(b). The arbitration notice consists of 191 words of text immediately preceding Ms. Ilinestky's signature, under a boldfaced heading entitled "KAISER FOUNDATION HEALTH PLAN, INC., ARBITRATION AGREEMENT," sep...

Excerpt: ...good cause for issuance of the order by a preponderance of evidence. (Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1145.) The court finds that Plaintiffs have not presented good cause in support of their motion by a preponderance of the evidence. Generally, there is no right of public access to discovery materials exchanged between civil litigants (e.g., pretrial depositions and interrogatories). Nor do the sealing rul...

Excerpt: ... 93, 94, and prayer 7.) On 10/7/19, plaintiffs identified many of the DOE defendants, including DOE #3 - Justice Brothers. This is a motion to strike. On notice issues, the question is whether the complaint puts defendant on notice of the claims against them. On merits issues, the question is whether the complaint states claims when the court takes all factual inferences in favor of plaintiffs. The motion to strike the allegation regarding "other...

Excerpt: ... Civil Procedure section 1008(a).) Safeway argues that the "new or different facts or circumstances" on which this motion is based is that Plaintiff Cheryl Demello ("Plaintiff") introduced "additional new evidence" at the December 20, 2019 hearing on Safeway's motion for summary judgment. This assertion is incorrect. Plaintiff did not introduce any new evidence at the December 20, 2019 hearing, nor did she "present the full length of the video." ...

Excerpt: ...the Court requests that the parties address the following issues. Plaintiff should be prepared to address what evidence in the record exists to support her burden to show that Plaintiff was a qualified person with a disability, i.e., that Plaintiff could perform the essential functions of her prior position or any other then open position with Defendant, with or without reasonable accommodations, as of June 4, 2012, the date of the adverse employ...

Excerpt: ...e same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." (CCP § 1008(a).) "The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." (Id.) In addition, "[t]he court may, upon any terms as may be just, relieve a party ...

Excerpt: ... while he or others in his presence replaced Defendant's brake parts. Motion for Summary Judgment Defendant targets the threshold exposure sub-element of the essential element of causation by attempting to show that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (See Rutherford v. Owens-Illinois, Inc....

Excerpt: ...8507 Overacker Avenue, in Fremont, from David Aguilar in December 2017. Defendant purchased his property, located at 38508 Thane Street, from Raul and Mayra Ruiz in July 2016. Plaintiffs and Defendant do not dispute the fact that Plaintiffs' property encroaches upon Defendant's property in two distinct areas. There is an encroachment of about 65 square feet that permits Plaintiffs to enter their backyard from the driveway through a gate. Unknown ...

Excerpt: ...tely December 2012. Plaintiff and her husband executed a two-year lease with Waypoint Homes, Inc. on December 22, 2012. Plaintiff Vanessa Bulnes operated an in-home child care business on the property. In October 2013, in preparation for the installation of planter boxes in the children's play area on the property, third party City Slicker Farms analyzed the soil in the area and determined that it contained excessive levels of lead. Plaintiff req...

Excerpt: ...eckenridge Property Fund 2016 LLC with leave to amend on August 14, 2019, Plaintiffs filed and served their Second Amended Complaint on September 3, 2019. Plaintiffs' Proof of Service indicates that the pleading was served on Defendant's attorney on September 3, 2019. Defendant therefore had until October 8, 2019 to file and serve the Demurrer. See CCP §§ 430.40(a) and 1013. Defendant did not file its Demurrer until October 15, 2019. Defendant ...

Excerpt: ...eckenridge Property Fund 2016 LLC with leave to amend on August 14, 2019, Plaintiffs filed and served their Second Amended Complaint on September 3, 2019. Plaintiffs' Proof of Service indicates that the pleading was served on Defendant's attorney on September 3, 2019. Defendant therefore had until October 8, 2019 to file and serve the Demurrer. See CCP §§ 430.40(a) and 1013. Defendant did not file its Demurrer until October 15, 2019. Defendant ...

Excerpt: ...ts of suit, which the Moving MPA estimates are approximately $20,113 to date. The Settlement Agreement calls for a $2,500 class service award to each of plaintiffs Lorenzo and Figueroa, a net PAGA payment of $3,750, and administration costs estimated to be $7,620. Thus, after expenses of approximately $133,983, the class would receive approximately $191,017. The average payout to class members would be approximately $955. Settlement negotiations ...

Excerpt: ...espond fully, including producing responsive documents, as necessary, within 15 days from the date of service of notice of entry of this Order, as modified for method of service under Code of Civil Procedure section 1013. The Court previously ordered Defendant to respond to Plaintiff's requests for production on October 3, 2019. Defendant eventually responded, serving written responses to the requests for production on October 24, 2019. (See Exh....

Excerpt: ...f Documents Nos. 2 through 10, and Requests for Admission Nos. 2 through 5. The date for Defendant's compliance with this Order in regards to discovery responses is 30 days from the date of service of notice of entry of this order, as modified for method of service under Code of Civil Procedure section 1013. Defendant Andy Yang is ORDERED to serve full, complete, and verified further responses, without objection (other than objection as to attorn...

Excerpt: ... in the complaint is not the proper court. (b) When there is reason to believe that an impartial trial cannot be had therein. (c) When the convenience of witnesses and the ends of justice would be promoted by the change. (d) When from any cause there is no judge of the court qualified to act." The Alameda Superior Court is the jurisdictionally proper Court for this action to be heard. The subject real property is located in Alameda County, and bo...

Excerpt: ...on for labor condition application with the US Labor Department for Ravi Nakidi." Teamsoft contends Plaintiff's failure to provide documents responsive to Request No. 9 is inappropriate and subject to a motion to compel. The Court disagrees. Plaintiff need not comply with Request No. 9. The Court reaches this decision for multiple reasons, each of which would be sufficient to DENY the motion on its own, as follows: First, the Court finds Plaintif...

Excerpt: ...state a cause of action. (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.) Cross-Complainants Clayton E. Swartz, Haeng Cha Swartz and JHK Common, Inc. (collectively the "Swartz's) urge the Court to find Cross-Defendant's Motion untimely under the provisions of California Code of Civil Procedure section 438. Section 438 was enacted in 1994, but a non-statutory motion for judgment on the pleadings predated the statutory motion. As discuss...

Excerpt: ...deposit of a fraudulent cashier's check, which resulted in Bank's loss of almost $200,000. Bank in turn charged its losses against the accounts of Leader-Picone & Young, LLP ("LLP"), the entity that had presented the fraudulent check to the bank for deposit. LLP filed the Complaint in this action, making various allegations against Bank in regards to the attempted deposit of the fraudulent check and resulting activities. Bank in turn filed a Cros...

Excerpt: ... that Shaun Ferderer, an "Alameda County Firefighter," was injured on May 7, 2018, when the ambulance he was in entered an intersection in Hayward against a red light and collided with a vehicle driven by Defendant Luis Carlos Salazar, Jr. and rolled over. Lauren Ferderer has filed a loss of consortium claim. Plaintiffs claim that their injury was proximately caused by the negligence of Salazar and the driver of the ambulance, Kendyl Marie Post. ...

Excerpt: ...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 pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in...

Excerpt: ...rneys General Act of 2004 ("PAGA") (Lab. Code § 2698 et seq.). Plaintiff's attorney represented that a copy of this motion was transmitted to the LWDA on October 4, 2019. (Declaration of David Mara ["Mara Dec."] ¶ 14, Exs. 2- 3.) The LWDA has not appeared in this action to offer comments on, or objections to, the proposed settlement. STANDARD OF LAW Representative litigants must submit any settlement of a PAGA representative action for Court ap...

Excerpt: ... costs pursuant to para. 38 of the Disposition and Development Agreement ("DDA"), which provides that in the event any legal action is commenced to interpret or to enforce the terms of the DDA and/or the other loan documents, the party prevailing in such action shall be entitled to recover against the party not prevailing all reasonable Attorneys' Fees and Costs incurred in the action. In this action, RPII sought a declaratory judgment: (1) requi...

Excerpt: ...e pleadings." (CCP § 438(b)(1).) A defendant may make such a motion only if "either of the following conditions exist: (i) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint[;] [or] (ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "The grounds for [the] motion . . . shall appear on the face of the challenged pleading or...

Excerpt: ...ation regarding two garment pieces identified in AFA's Proposition 65 Notice by style number since the notices also broadly identify all items manufactured of the same material as the two identified garment pieces. Specifically, the notices state under "Types of Products": "The specific types of products causing the violations are various pieces of uniform apparel. These include, but are not limited to, the following listed items and items manufa...

Excerpt: ...9032246 ("Macias Action"), and Gallagher Basset Services, Inc., et al. v. Domingo Antonio Doroteo, et al., Alameda County Superior Court, Case No. RG19034930 ("Gallagher Action"). IT IS FURTHER ORDERED THAT all future filings shall be in this action, Yolanda Reyes Lopez, et al. v. Domingo Antonio Doroteo, et al., Alameda County Superior Court, Case No. RG19030100. "When actions involving a common question of law or fact are pending before the cou...

Excerpt: ...umed to be open. (Cal. R. Ct. 2.550(c).) The Court may order records sealed only if it finds "(1) There exists an overriding interest that overcomes the right of public access to the record; (2) The 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) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist t...

Excerpt: ... Halaby, Senior Civil Engineer for the City of Richmond, filed a complaint with the Department of Labor Standards Enforcement ("DLSE") on or about February 25, 2016 stating that Petitioner refused to submit certified payroll records for work completed in 2015 for a City of Richmond public works project. (Administrative Record ("AR") 3, 66-67, 137-138.) Mr. Halaby felt Petitioner's actions were in contravention of prevailing wage law. (Id.) The ge...

Excerpt: ... than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (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 ame...

Excerpt: ...urt finds that triable issues of material fact exist with respect to WCA's alleged negligence towards Plaintiffs and that under the relevant written contract between WCA and City, WCA must "indemnify, defend and hold harmless" City from any "Claims" by third parties against City "arising from" WCA's negligence "whether alleged or actual." In March 2018, a large Monterey Pine tree in the City's lower Washington Park suddenly fell, injuring Plainti...

Excerpt: ...of the settlement amount, or $416,666, plus costs of suit in an amount not to exceed $20,000. The Settlement Agreement calls for a $12,500 class service award to Plaintiff, a net PAGA payment of $30,000, and administration costs of up to $75,000. Thus, after expenses of approximately $554,166, the class would receive approximately $695,834. The average payout to class members would be $36.62. Settlement negotiations involved one full day of media...

Excerpt: ...e "Notice of Satisfaction") only extinguished the portion of the Bank's secured claim constituting approximately $50,000 in arrearages on the relevant secured debt as of the date of filing of Plaintiff's bankruptcy petition. Under federal Chapter 13 bankruptcy law, the Satisfaction of Mortgage signed by solely by Plaintiff and recorded with the Alameda County Recorder's Office on 7/24/2019 has no force and effect with respect to the balance of th...

Excerpt: ...argue that the decision in Brawley v. J.C. Interiors (2008) 161 Cal.App.4th 1126 is inapplicable to the judgment entered in this case on September 17, 2019. However, the Court is currently inclined to deny U Unlimited's request to vacate its order issued on November 30, 2019 granting, in part, the motion by Jeffrey Spahn and Paul Bontekoe (collectively, "Homeowners") to set aside judgment and enter new judgment. The Court determines that the Braw...

Excerpt: ...e Cross-Complaint's First Cause of Action alleging a breach of an oral contract to "provid[e] assistance in obtaining an L1 VISA." (See X-Complaint, ¶ 6.) Cross-Defendants now demur to this First Cause of Action, arguing it is an illegal, and therefore unenforceable, contract to violate immigration laws. A general demurrer lies where the terms of the contract alleged are illegal and therefore void. (See Beck v. Am. Health Group Int'l, Inc. (1989...

Excerpt: ...rst Amended Complaint asserts that the wage statements failed to state the rate of pay for double-time hours worked. (1AC, para 31.) Labor Code 226(a) requires an employer to provide an "accurate itemized statement." Labor Code 226(e)(2)(B) states that "An employee is deemed to suffer injury for purposes of this subdivision if the employer fails to provide accurate and complete information ... and the employee cannot promptly and easily determine...

Excerpt: ...thly and keep accurate central payroll records, to recover any penalties at all under the Unfair Competition Law ("UCL") (Bus. & Prof. Code §§ 17200 et seq.), and to recover penalties on behalf of the Labor Workforce Development Agency ("LWDA") under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Lab. Code §§ 2698 et seq.) Lancieri opposes both the demurrer and motion to strike. For the reasons discussed below, Performant's de...

Excerpt: ...ted. (Hicks v. Kaufman and Broad Home Corp. (2001) 89 Cal.App.4th 908, 916 fn 22.) The Court's focus is on not just the presence or absence of individual issues but the nature of those issues and how significant they will be to the conduct of the trial. (Dunbar v. Albertson's, Inc. (2006) 141 Cal. App. 4th 1422, 1431-1432.) The First Amended Complaint filed 2/8/19 asserts a single claim for breach of fiduciary duty. The briefing on the motion for...

Excerpt: ...14, 2017. The plaintiff in the Dreambuilders Action is owned by Plaintiff Sophie Han, a defendant in the Kim action. No party in the Kim Action has filed papers opposing this motion. Plaintiff Pelorus Equity Group, Inc. opposes the motion. Pelorus argues that its original complaint in this action alleged only that BuildZig submitted draw requests on a loan for work that was not done, and to which BuildZig was not entitled, on a project that ended...

Excerpt: ... period from 1998-2012. Plaintiff seeks to recover policy benefits for lawsuits and claims against it arising from alleged defects in Plaintiff's plumbing components involving nine different lawsuits or projects. Plaintiff claims that AIG renewed Plaintiff's policy in 2009/2010 even though it did not have enough money to pay claims, and thereafter devised a plan using coverage litigation, misstatement and delay to avoid making payments. In its pr...

Excerpt: ...Plaintiff alleges that it is the successor in interest to "The Glovatorium, Inc." Plaintiff alleges that Maryland Casualty Co. was the insurer of The Glovatorium, Inc., and Zurich is the successor by merger to Maryland Casualty Co. Plaintiff alleges that starting in the 1960s, Robert Depper operated a dry-cleaning business known as The Glovatorium, on Broadway Street in Oakland. In 1999, Depper and his son, Stuart Depper, filed a lawsuit, Robert ...

Excerpt: ...anting trial preference "if necessary." Defendant Westamerica Bank opposes. The motion is GRANTED IN PART. The Court determines that the deadline is September 10, 2020. The parties are ordered to APPEAR, after meeting and conferring regarding the trial date for the Reddish action. PROCEDURAL MATTERS - SERVICE Plaintiffs attempted to serve their motion papers by personal service. (See Proof of Service (filed December 20, 2019).) The filed proof at...

Excerpt: ...ings against Kaiser based on the claims asserted in this lawsuit in June 2018, a year before filing the lawsuit. (See the declaration of Peter Sekelick, paragraphs 3-4 and Exhibits J-L thereto.) Plaintiff has therefore waived any objections to having these claims resolved in arbitration. (See, e.g., Kemper v. Schardt (1983) 143 Cal.App.3d 557, 561.) Plaintiff's Kaiser membership agreement requires him to arbitrate any claims arising from or relat...

Excerpt: ...s filed on September 19, 2019, and shows mail service on September 16, 2019. Plaintiff filed her First Amended Complaint on October 25, 2019. Defendant contends that the failure to file the First Amended Complaint within the time permitted by the court subjects the First Amended Complaint to a motion to strike pursuant to Code of Civil Procedure section 581(f)(4). (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 [dismi...

Excerpt: ...nt. (See FAC, ¶¶ 15-31, 39-41.) Specifically in regards to the Moving Defendants, Plaintiff alleges they were real estate agents and a brokerage firm working for the landlord, who engaged in menacing and harassing activities against Plaintiff while endeavoring to sell the real property containing Plaintiff's former residence. (See FAC, ¶¶ 10, 108.) Plaintiff has alleged causes of action against the Moving Defendants for elder abuse and for un...

Excerpt: ...tiating or participating in any manner in any lien assessment proceeding, including but not limited to causing or participating in the recording in the public records of a claim of lien against real property owned by Petitioners and by members of the Bayside Court Property Owners' Association. PROCEDURAL POSTURE After filing their initial Petition, Petitioners applied for a temporary restraining order against Respondent. A temporary restraining o...

Excerpt: ...the mandatory provision of Code of Civil Procedure section 473(b) based on her attorneys' affidavit of fault. That provision of section 473(b) applies only to defaults, default judgments, and dismissals (i.e., "the withdrawal of an application for judicial relief by the party seeking such relief, or the removal of the application by the court.") (See Las Vegas Land & Development Co. LLC v. Wilkie Way LLC (2013) 219 Cal.App.4th 1086, 1091.) Here, ...

Excerpt: ....5th 198, 209-210.) Plaintiff Performance Max Inc. ("PMI") fails to do so here. Personal jurisdiction may be either general or specific. (See ViaView, supra, 1 Cal.App.5th at 209.) A nonresident is subject to general jurisdiction in the forum if its contacts in the forum are substantial, continuous, and systemic. (Id.) The Amended Declaration of Tae Yoo submitted with PIQ's initial reply papers demonstrates that PIQ does not have substantial, con...