Excerpt: ... 94.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded, i.e., ultimate facts alleged, but not contentions, deductions, or conclusions of fact or law. (Adelman v. Associated Int'l. Ins. Co. (2001) 90 Cal.App.4th 352, 359.) The plaintiff's ability to prove the allegations is of no concern in ruling on a demurrer. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d...

Excerpt: ...of oral contract or an implied in fact contract sufficient as against a general demurrer. Paragraph 83 specifically provides in exchange for payment of tuition, Director Lopez promised ALCS could handle Lucas4 , would not send him home during the day, and it does not expel students. The alleged agreement not to send Lucas home was definite, and Plaintiffs clearly allege breach. Consideration is also clearly pled—payment of tuition. Just because...

Excerpt: ...ient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)2 ; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) “A person against whom a complaint or cross‐complaint has been filed may, within 30 days after service of the complaint or cr...

Excerpt: ...7c, subdivision (c), summary judgment is proper where there is no material fact in dispute as to any essential element of a cause of action. Code of Civil Procedure section 437c, subdivision (p)(1), provides that a plaintiff has met his/her burden of showing there is no defense to a cause of action if he/she has shown each and every element of the cause of action entitling the party to judgment on that cause of action. A defendant has met its bur...

Excerpt: ...y one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)1 ; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) “A person against whom a complaint or c...

Excerpt: ...upport of the motion on February 24, 2021. MOTION: 1. Law to Be Applied in A Summary Judgment Motion: “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite 2 their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is proper where the...

Excerpt: ...erson Most Qualified (PMQ). The fact that Defendant asserts in its Opposition that it agrees to all but one of the categories yet argues the other categories is also telling. Finally, this Court would never require a party to re‐produce documents already produced in other discovery. 2 Both counsel are experienced in this area of law and by now should know of and cooperate with each other as to each's discovery needs and save only the real dispu...

Excerpt: ...asions, and laceration and permanent scarring to MacPherson's nose. (Compl. ¶¶ 5‐12.) Page 2 of 13 On July 23, 2019, MacPherson filed a Complaint against Rodriguez, alleging causes of action for: (1) negligence; (2) strict liability; (3) negligence per se; and (4) premises liability. MacPherson alleges that after the attack, she had to plead with Rodriguez to get help at the hospital. While waiting for medical care, Rodriguez insisted, harass...

Excerpt: ...iance tiers, based on a ten‐year retrospective assessment of operations: Acceptable, Conditionally Acceptable, or Unacceptable. DTSC assigned Hazmat to the Unacceptable tier for 2019 and the Conditionally Acceptable for 2020. The assignments have consequences, although the parties disagree about the immediate consequences. According to Hazmat, the 2019 assignment requires DTSC to initiate permit denial, suspension, or revocation proceedings, an...

Excerpt: ...the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12‐month period.” Subdivision (l) allows the employer to calculate paid sick leave for nonexempt employees in one of two different ways. Subdivision (l)(1) allows paid sick time to “be calculated in the same matter as the regular rate of pay for the w...

Excerpt: ...y Act— Breach of Express Warranty; (2) Violation of Song‐Beverly Act—Breach of Implied Warranty; and (3) Violation of the Song‐Beverly Act, section 1793.2. Page 2 of 12 On March 11, 2021, Defendant filed its “pretrial motion to determine the scope of Plaintiff's recoverable damages.” Plaintiff filed a timely opposition. At that time, trial was set for April 12, 2021. On March 19, 2021, Plaintiff filed his motion to compel the depositi...

Excerpt: ...nts requested judicial notice of are attached to the Declaration of Moses S. Bardavid, Esq.1 and Plaintiff does not object on this ground so the Court will entertain this Request. Plaintiff objects to Defendants' request on the ground that the interrogatory responses are not proper subjects of judicial notice for purposes of ruling on this demurrer. The objection based on hearsay is easily resolved as there is an exception to the hearsay rule whe...

Excerpt: ...t Cause of Action – Breach of Contract The elements of a breach of contract cause of action are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731.) In the first cause of action, Plaintiff alleges that a copy of the subject written Purchase Agreement is attached to the Complaint as Exhibit 1 “and incor...

Excerpt: ... to the Court but had not yet been processed. Page | 4 Plaintiff requested a Mandarin interpreter, but there was none available at the time. The Court continued the hearing to May 12th so that Defendants could file an amended declaration of Dr. Sung. The Court ordered Defendants to submit an amended declaration within 10 days and then Plaintiff would have 20 days to file an opposition and Defendants would have 10 days to file a reply. On March 10...

Excerpt: ...ds each of these causes of action fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e) & (f).) Second Cause of Action – Civil Code § 1942.4 Defendant argues Plaintiffs still fail to name any public officer or enforcement agency that allegedly inspected the property or provided notice to Defendant. Additionally, Plaintiffs fail to allege the date the notice was provided to determine the 35 day...

Excerpt: ...ns have been withdrawn by Plaintiffs; therefore, no ruling is made. Motion to Compel Further Responses to Production of Documents (Set 3) Against Defendant Esther Garcia: In the Joint Statement, Defendant Esther Garcia agreed to serve an amended Privilege Log. No such amended Privilege Log has been provided to the Court so the 2 Court asks the parties how it can evaluate a log that is not before the Court? The Court, however, agrees with Plaintif...

Excerpt: ...blower retaliation statute); (4) FEHA failure to prevent discrimination and harassment; (5) IIED; and constructive discharge in violation of public policy. Page 2 of 13 On March 2, 2021, Defendant filed this motion to compel arbitration. Plaintiff filed a timely opposition. Defendant filed a timely reply. II. DISCUSSION Statement of Law California Law Code of Civil Procedure sections 1280 et seq. provide a procedure for the summary determination ...

Excerpt: ...eeding, the District and CSEA failed to mutually agree on the selection of a hearing officer under the relevant provisions of Article 17 of the collective bargaining agreement, and that CSEA objected to the selection of H.O. Macklin. [Writ Page 2 of 13 Petition, ¶ 9.] As a result, when Williams was advised that the District had unilaterally selected H.O. Macklin, Williams objected to the selection and asked to participate in the selection of a n...

Excerpt: ...eeding, the District and CSEA failed to mutually agree on the selection of a hearing officer under the relevant provisions of Article 17 of the collective bargaining agreement, and that CSEA objected to the selection of H.O. Macklin. [Writ Page 2 of 13 Petition, ¶ 9.] As a result, when Williams was advised that the District had unilaterally selected H.O. Macklin, Williams objected to the selection and asked to participate in the selection of a n...

Excerpt: ... withdrawn by Plaintiffs; therefore, no ruling is made. Motion to Compel Further Responses to Production of Documents (Set 3) Against Defendant Esther Garcia: In the Joint Statement, Defendant Esther Garcia agreed to serve an amended Privilege Log. No such amended Privilege Log has been provided to the Court so the 2 Court asks the parties how it can evaluate a log that is not before the Court? The Court, however, agrees with Plaintiffs that the ...

Excerpt: ...lower retaliation statute); (4) FEHA failure to prevent discrimination and harassment; (5) IIED; and constructive discharge in violation of public policy. Page 2 of 13 On March 2, 2021, Defendant filed this motion to compel arbitration. Plaintiff filed a timely opposition. Defendant filed a timely reply. II. DISCUSSION Statement of Law California Law Code of Civil Procedure sections 1280 et seq. provide a procedure for the summary determination o...

Excerpt: ...ations as alleged in paragraph 22 of the Complaint. (Hudson Decl. Exh. A.) Therefore, defendant argues that Plaintiff and her counsel lack a good faith basis to bring the Complaint. Plaintiff, however, submits her own declaration, stating that during her hiring process she was required to undergo a criminal background check as a condition of employment. She states that Patrick Warden of Defendant's Human Resources Department presented her with a ...

Excerpt: ...ed 2 Motion: The motion is denied, without prejudice. Where a motion for prejudgment possession is opposed, the moving party is required to establish each of the following: (1) the plaintiff is entitled to take the property by eminent domain, (2) the plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article, (3) there is an overriding need for the plaintiff to posses...

Excerpt: ...n. On 10/21/20, the court issued a ruling to deny certification based on the court's misunderstanding that plaintiff had failed to submit evidence of numerosity and a trial plan. On 11/2/20, plaintiff filed a motion for reconsideration. On 12/22/20, the court granted plaintiff's motion for reconsideration, based on plaintiff's uncontested submission that there were 344 putative class members and because the court had actually deferred the require...

Excerpt: ...nting and Drywall dba T&R Construction Group (“T&R”), filed its original Complaint against defendants, Fore Construction, LLC 2 (“Fore”) and CPR/FPC Foothill Owner, LLC (“CPR/FPC”). On March 10, 2020, as a matter of right, T&R filed the operative First Amended Complaint (“FAC”) alleging the eight causes of action: (1) Breach of Contract; (2) Quantum Meruit; (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Enforce...

Excerpt: ...rer to the third, fifth, sixth, and seventh causes of action with leave to amend. The operative First Amended Complaint (“FAC”) was filed on January 12, 2021. Plaintiffs allege they purchased a new 2015 KIA Sportage vehicle on July 27, 2015. The vehicle was purportedly covered by KIA's 5‐year or 60,000‐mile express bumper to bumper warranty and its 10‐year/100,000 mile powertrain warranty. Subsequently, KIA provided a 10‐year/120,000 ...

Excerpt: ...s different from the class members and the PAGA period. The net class settlement is $156,616.12, which will be divided among the 168 class members based on the number of work‐weeks each worked. With 4,951.68 total work‐weeks, each class member will receive $31.02 per work‐week, with the average receipt of $914.38. The PAGA allocation is $10,000, with 75% ($7.500) paid to the LWDA and 25% ($2,500) paid to the aggrieved employees. Counsel sho...

Excerpt: ...ployees or how their shares will be calculated. But whatever the individual shares would be, the amount to be paid to the named representative—apparently $23,500.00—exceeds the entire amount designated as the PAGA component of the settlement by $20,536.66. Of the $30,000.00 gross settlement amount, the approximate distributions are as follows: 7.22%: Attorney fee 4.56%: “PAGA and administration” costs (unexplained what this means) 7.40%: ...

Excerpt: ...l number of work‐weeks in the class period (though May 6, 2021). If this information is not presently available, it can be provided at the time of final approval. At final approval, costs must be specifically itemized. Counsel should be aware that the Court does not award costs for LEXIS or Westlaw research, which the Court considers to be an item of overhead. The Court also limits photocopying charges to $0.06 per page. While the attorney fee ...

Excerpt: ...unsteady gait. Using the license plate number provided to him, Officer Stark traced Ortolani to her residence. After arriving at her residence, Officer Stark observed the vehicle described by the other parties to the collision and noted it was warm to the touch. He made contact with Ortolani where he noted she had bloodshot and watery eyes, an odor of alcohol, and slurred speech. Ortalani admitted driving and being involved in the accident. While...

Excerpt: ...o be futile. In moving to strike paragraph 32, pertaining to subsequent penalties, on the ground that there has been no determination of an initial violation, defendant relies on Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1209. In Amaral), the Court found, "Until the employer has been notified that it is violating a Labor Code provision (whether or not the commissioner or court chooses to impose penalties), the employer cannot be p...

Excerpt: ...as to Defendant Glass only. 1 Because some parties share a common last name, first names are used for clarity. No disrespect is intended. 2 The motion was set to be heard April 13, 2021, but at that hearing was continued by the Court to May 5, 2021. DISCUSSION Discretionary Provision under Code of Civil Procedure section 473(b) Under Code of Civil Procedure section 473, subdivision (b), “the court may, upon any terms as may be just, relieve a p...

Excerpt: ...ve any publicly viewable content on the internet regarding any party to this litigation or the merits of this litigation. Finally, Defendants move for an order prohibiting Plaintiff's counsel or its surrogates from sending any communications to any state agency regarding any parties to this litigation or relating to the merits of this litigation. Plaintiff opposes arguing that there is insufficient legal authority, that there has not been a viola...

Excerpt: ...matters: 1. The number of aggrieved employees. 2. The number of work‐weeks in the PAGA period. Although the motion seeks $25,000 as an estimate of costs, Ms. Carney's declaration documents only $18,433.09 in costs. Included in this amount are the following: 1. $4,309.92 for “Outside Contractor.” Counsel must explain this entry. 2. Counsel also seeks $734.81 for LexisNexis charges. The court considers LexisNexis to be an item of overhead, no...

Excerpt: ...ned before his death. She asserts that the tax basis for the property was established decades ago, either before her father's death or upon his death in 1997. Upon his death, however, the property was transferred not to petitioner alone, but to petitioner and her sisters. Apparently based on equitable concerns,2 the sisters eventually transferred their interests in the property to petitioner by grant deed, recorded in 2015. Based on that transfer...

Excerpt: ...e Civ. Proc., § 437c, subd. (a)(2).) Costco filed its MSJ on February 11, 2021. The proof service attached to the MSJ indicates Costco served its MSJ by mail on February 10th. Seventy‐five days beyond that date is Monday, April 26th. Adding the five court days for mail service results in a date of Saturday, May 1st. The hearing should have thus been noticed on or after Monday, May 3rd. Instead, it was noticed for March 23rd. However, this issu...

Excerpt: ...onstruction, Inc. and Katherine Hall a. Discussion i. 1st Cause of Action (“COA”) – Fraud 2nd COA – Negligent Misrepresentation The Koala Defendants assert both the allegations of fraud and negligent misrepresentation are not specifically pled as required. Cross‐Complainants argue the causes of action are well‐pled. For Hani and Frances Sayegh as to the second cause of action, they argue the cross‐ complaint does not allege they mad...

Excerpt: ...sustain 28. overrule B. Declaration of Floyd E. Clark (Exhibit C): 1. overrule 2. sustain 3. overrule 4. overrule 5. overrule 6. overrule 7. overrule 8. overrule 9. sustain C. Deposition of Bryan Shropshire (Exhibit 1): 1. – 2. overrule 3. sustain 4 4. ‐ 8. overrule 9. sustain D. Deposition of Arthur Andres (Exhibit 2): 1. ‐ 2. overrule 3. sustain 4. ‐ 9. overrule E. Deposition of Michael Pelletier (Exhibit 3): 1. ‐ 5. Overrule F. Depos...

Excerpt: ...he premises expert witness declarations would not be based on the new trial date. Now, Defendant seeks to subvert the court order they prepared in stipulated to. Defendants have not complied with Code Civ. Proc., §2034.720 and the motion must be denied. Here, Plaintiff will be prejudiced by allowing Defendant to submit tardy expert witness information. Plaintiff was prepared to go to trial in February 2020. Defendant offered to go to mediation a...

Excerpt: ... at ¶¶4‐5, 9, and Exhs. 1‐2, 8; Whitman Decl. [RFA] at ¶¶4‐5, Exhs. 1‐2; Brignoni Decl. at ¶¶5‐7, Exhs. D‐F.)1 Finding the responses and/or further responses deficient to (i) FR #1.1, 12.1, 15.1, and 17.1, (ii) SR #14, 19‐20, 23, 40‐41, 46, and 51‐53, (iii) RFPs #1‐5, 9, 17, 19, 31‐33, 37‐45, 53‐ 54, and (iv) RFAs #1‐2, 10‐11, 17‐20, 22, and 24, Plaintiffs Tindell and Libretti move to compel further responses...

Excerpt: ...dog. The motion is supported by a separate statement of fact, a declaration from defense counsel (Tracy W. Goldberg), and portions of the transcript from Foster's deposition. The undisputed facts presented with the motion indicate Foster was walking her dog, Doodles, when one of defendants' dog attacked and bit Doodles. (Fact No. 1.) In response, Foster attempted to protect Doodles by pulling him away from defendants' dog to get Doodle's back int...

Excerpt: ...he amount is reasonable. Counsel should confirm the exact amount of the administrator's fee 3. The requested attorney fee of 35% of the gross is excessive under the common fund doctrine and is unsupported by the lodestar analysis, which shows hourly rates substantially exceeding appropriate rates in the relevant community. The court will award 1/3 of the gross under the common fund doctrine, or $1,000,000.00. 4. The incentive fees of $15,000 each...

Excerpt: ...ently filed Plaintiff's Opposition to Defendant's Motion rather than the Motion to Strike itself. Meanwhile, it appears the Motion was served on Plaintiff as she filed her Opposition to the Motion on December 10, 2020. A Reply was filed on December 16, 2020. However, as the Motion was never filed with the Court, it was not placed on calendar. On March 15, 2021, Defendants refiled the Motion to Strike Punitive Damages. The Court notes that there h...

Excerpt: ...were willful and deliberate, and that they constitute a wanton disregard of Plaintiff's interests. (Complaint, ¶¶ 25‐26.) However, the Motion to Strike does not move to strike these portions of the Complaint. 2 for punitive damages against him, as there are no facts pled demonstrating Defendant's actions or inactions rose to the level of malice, oppression, or fraud. Statement of Law “Any party, within the time allowed to respond to a plead...

Excerpt: ...te hearing, the Court set the matter on noticed motion, since it advised the parties that the March 22 trial would have to be continued due to COVID and the rules in place for social distancing. Once continued, it was hoped that the parties would come to some mutual agreement and have these depositions noticed by agreement once a new trial date is set at the TSC which will not occur until January, 2022 or later. After being called by the Court's ...

Excerpt: ...on contained in the SAC and make the mistaken assumption that a positive ruling as to the 1st, 4th, and 5th causes of action will moot the 2nd, 3rd, and 6th causes of action resulting in a judgment in their favor. Code of Civil Procedure, section 437c specific states: Page | 2 “… the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the...

Excerpt: ... that ruling be exhausted or waived, both FedEx Office and the Team Member nevertheless waive their right to proceed before a jury, meaning all actions shall proceed only before a judge.” Plaintiff's claims of procedural unconscionability are not persuasive. There is no evidence that Plaintiff was unaware of the arbitration agreement or that he did not understand it. There is no evidence Plaintiff specifically asked about the arbitration agreem...

Excerpt: ...dismiss the individual claims with prejudice, and therefore seeks “reconsideration” of the minute order. While a mistake on the part of counsel would not constitute proper grounds for a motion for reconsideration, and a motion for reconsideration filed more than ten days later would be untimely, no motion was necessary, because the individual claims were never, in fact, dismissed with prejudice. The only papers filed with the court by the dea...

Excerpt: ...e damages, as the conscious disregard of the safety of others is not, by itself, sufficient to establish malice or oppression. 2 Plaintiff timely filed his Opposition on April 9, 2021, arguing his allegation that Andrew Rodriguez willfully and wantonly operated a motor vehicle while intoxicated, and in total disregard of the health and safety of Plaintiff's father is sufficient, at the pleading stage, and before any discovery is conducted, to ove...

Excerpt: ...Ralph Diaz. On August 14, 2019, Petitioner, a correctional officer with the CDCR was served with a “notice of adverse action” accusing her of violating CDCR policies in connection with an attempted prison escape. Based on the policy violations, Petitioner's salary was reduced by 5% for ten pay periods. Page 3 of 12 Petitioner appealed the notice of adverse action and the appeal was heard by an SPB Administrative Law Judge (ALJ). The ALJ rende...