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2020.05.19 Demurrer 210
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.05.19
Excerpt: ... Court's order, which was not done, or answer, which was done. Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 7.152 et seq. (TRG 2019). Unlike the situation where a demurrer is sustained with leave to amend and the law is uncertain on whether a successive demurrer can be filed to the amended complaint, id. at § 7:139 et seq., the law does not allow successive demurrers when the initial demurrer has been overruled in its...
2020.05.19 Application for Writ of Possession 276
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.05.19
Excerpt: ...s wrongfully detained by Defendants, the manner in which Defendants came into possession of the property, and the reason for the detention. (See C.C.P. § 512.010(b)(2).) The contract for the vehicle was entered into between Towne Ford Sales and Jahnetics California, and the contract was then assigned by Towne Ford Sales to Plaintiff. (See Dunstan Decl., Exh. A.) However, Plaintiff now claims that the vehicle is in the possession of Defendants Ja...
2020.03.16 Demurrer 362
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.16
Excerpt: ...ot deemed filed merely by virtue of the Court granting leave to amend. A proposed amended pleading must be separately filed with the Clerk's office after leave to amend has been granted. Here, the “First Amended Cross‐Complaint” (FACC) at issue in this Motion to Strike has not been properly filed with the Court. The Court's 12‐5‐19 Order merely granted the Hogans leave to file it. However, notwithstanding this procedural defect, under t...
2020.03.13 Motion for Summary Judgment, Adjudication 536
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.13
Excerpt: ...and then has taken the motion offcalendar, refiled it and continued the hearing date due to Plaintiff's counsel's medical issues. On January 17, 2020, this motion was set for hearing. Plaintiff filed no opposition, but after the date the opposition was due, Plaintiff's counsel requested a continuance for medical reasons. Over defense objections on the basis that the hearing had been continued previously and defense counsel did not want to incur u...
2020.03.13 Motion for Determination of Good Faith Settlement 872
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.13
Excerpt: ...e liability. The Moving Defendants have submitted only the declaration of their attorney, Daniel Cribbs. The declaration provides no facts, based on discovery or otherwise, relating to Plaintiff's anticipated recovery or Defendants' proportionate liability. As a result, the motion must be denied. Greshko v. County of Los Angeles (1987) 194 CA3d 822, 834; Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 CA4th 1337, 1351.” At the hearing, Movin...
2020.03.13 Petition to Compel Arbitration, Stay Proceedings 747
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.13
Excerpt: ...written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitrati...
2020.03.12 Motion to Amend Judgment 840
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.12
Excerpt: ...e Civ. Proc. § 187. On 1‐29‐19, Plaintiff Homma, Inc. filed a Motion to Amend Judgment to Add Mr. Yoshiro Mikumo as an additional Judgment Debtor, pursuant to Code Civ. Proc. § 187. The initial 3‐14‐ 19 hearing date was thereafter continued multiple times, in part to allow Yoshiro Mikumo additional time to retain counsel to represent him in his personal capacity. On 6‐19‐19, the Court published a Tentative Ruling indicating its inte...
2020.03.12 Motion for Summary Judgment 463
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.12
Excerpt: ...gree, an action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” Code of Civ. Proc. § 340.6(a)....
2020.03.12 Motion for Entry of Judgment 764
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.12
Excerpt: ...iscloses that she currently owns and/or has a potential beneficial interest as of February 28, 2020 of about $2,700 in Travelers Cos., Inc. Further, she discloses that she has a niece and nephew that work for Travelers Insurance Company, which may be a related company to plaintiff. The motion for entry of judgment, filed by Plaintiff Travelers Property Casualty Company of America is DENIED. To qualify for enforcement or entry of judgment under Co...
2020.03.12 Application for Writ of Attachment 235
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.12
Excerpt: ...ment, the Court continued the matter to March 12, 2020 and allowed Defendants to respond to the objections. After further review of the application and all documents, the Court rules as follows. Plaintiff's evidentiary objections to the Declarations of Laurie Morgan and Andrew Engler are OVERRULED. The declaration of Laurie Morgan is based upon her personal review of nonhearsay materials and expert opinion; the Court finds she satisfies the requi...
2020.03.10 Motion to Strike 345
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.10
Excerpt: ...in, and Christopher Mader, is DENIED. The gist of this action is that Defendants engaged in “overly aggressive” litigation (FAC para. 59) in order to avoid or delay paying the amounts due under the Settlement Agreement. Some of the acts supporting the claims are the filing of a cross‐complaint, four appeals, motion to stay and compel arbitration, motion for sanctions, appeal of an anti‐SLAPP order, and appeal of order granting summary adj...
2020.03.10 Demurrer 140
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.10
Excerpt: ... wall inside the premises to create a dwelling unit.” The notice clearly informed Defendants that both (1) erecting a wall, and (2) subletting the premises, were violations of the lease. The notice was not ambiguous, irrespective of the fact that Plaintiff elected to call Defendants' activities a public nuisance. Defendants also contend the notice is defective because it was not served on the purported subtenants, and because the notice did not...
2020.03.09 Motion for Summary Adjudication 443
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.09
Excerpt: ... Evidence are ruled upon as follows: Obj. Nos. 1‐9. OVERRULED. Obj. No. 10. SUSTAINED. The article speaks for itself. Obj. Nos. 11‐28. OVERRULED. SUMMARY ADJUDICATION OF CAUSES OF ACTION FOR DEFAMATION AND TRADE LIBEL. Plaintiffs motions for summary adjudication on their causes of action for defamation and trade libel are DENIED. A plaintiff has met the burden of showing that they are entitled to judgment on a cause of action if they have pro...
2020.03.09 Motion to Expunge Mechanic's Lien 943
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.09
Excerpt: ...30 p.m. The Court reminds all parties that, going forward, Law & Motion matters will be heard at 1:30 p.m. This case arises from a construction/remodel project on a residential property in Hillsborough, Ca. In this motion, the Higgins (homeowners) argue that a Mechanic's Lien recorded on 6‐15‐19 by Plaintiff/contractor Abbott + Avelar Associates, Inc. (“A+A”) should be expunged because A+A did not serve a “Preliminary Notice” on the p...
2020.03.09 Motion for Summary Judgment 663
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.09
Excerpt: ...ernative motion for summary adjudication of the open book account and account stated claims is GRANTED. Plaintiff is entitled to judgement on these claims of $23,863.82. An open book account is: 1) a detailed statement entered during the regular course of business by the creditor, which constitutes the principal record of one or more transactions between a debtor and creditor arising out of a contract or some fiduciary relations that 2) shows the...
2020.03.06 Motion to Compel Production of Psychotherapist Records 455
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.06
Excerpt: ...must be brought no later than “60 days after the completion of the record of the deposition.” (Code of Civ. Proc. § 2025.480, subd. (a).) The 60‐day deadline applies not only to oral depositions, but also records‐only subpoenas. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131.) Respondent argues, citing no authority, that a records‐only deposition is “complete” on the date that the records are to be produced. This i...
2020.03.06 Motion for Summary Judgment 282
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.06
Excerpt: ... County's 2‐28‐20 correspondence requesting that the Court vacate Plaintiff's Dismissal and grant Defendant's motion. 2‐ 28‐20 letter, citing While the Court agrees with Defendant that a Plaintiff's right under § 581(c) to voluntarily dismiss a case prior to trial is not absolute, and that this Court has the power to vacate the Dismissal and rule on Defendant's motion under the circumstances, the Court declines to do so here. The Cravens...
2020.03.04 Petition to Compel Arbitration 355
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2020.03.04
Excerpt: ...alifornia. Cione v. Foresters Equity Servs., Inc., 58 Cal. App. 4th 625, 642 (1997). A party may move to compel arbitration pursuant to Code of Civ. Proc. Section 1281.2. Here, there is no disagreement that the dispute arises out of the CBA (Collective Bargaining Agreement) or that the CBA contains an agreement to arbitrate. Therefore, an agreement to arbitrate the controversy exists, and the Petition to compel arbitration should be granted, unle...
2020.03.02 Motion to Strike Punitive Damages 789
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.02
Excerpt: ...“could reasonably infer that defendants acted in callous disregard of plaintiffs' rights, knowing that their conduct was substantially certain to vex, annoy, and injure plaintiffs. Such behavior justifies the award of punitive damages.” Farmy v. College Housing, Inc. (1975) 48 Cal.App.3d 166, 176 (italics in original omitted). “Oppression for which punitive damages may be awarded ‘means subjecting a person to cruel and unjust hardship in ...
2020.03.02 Motion to Compel Compliance with Third Party Business Records Subpoena 411
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.02
Excerpt: ...PARTY BUSINESS RECORDS SUBPOENA The Petition/Motion to Compel Compliance with Third Party Business Records Subpoena is GRANTED IN PART. First, to the extent that Third Party Exponent, Inc. (“Exponent”) objects that this Petition/Motion is untimely under C.C.P. section 2025.480(b), the court finds this argument unpersuasive. C.C.P. section 2025.480(b) provides that a motion under this section shall be made no later than 60 days after the compl...
2020.03.02 Motion for Summary Judgment 497
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.02
Excerpt: ...“No [] special relationship exists . . . that can impose a duty on Defendants to prevent any harm that may befall the Plaintiffs in this type of situation, where a simple employee, while off the clock, goes on to commit a personally motivated criminal act.” MPA, p.13‐14. This characterization of events is contrary to Plaintiffs' allegations in the complaint that “Defendants gave access to their employee to a private home which said employ...
2020.03.02 Motion for Protective Order 871
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.03.02
Excerpt: ...ng evidence to show that discovery as to matters occurring from 2006 through 2009 are not relevant or likely to lead to any jurisdictional evidence. Since Continental has failed to show that that the design of the engine did not occur before 2010, then it has not shown Topics 1 and 2 cannot cover the prior years (as early as 2006). Further to show specific jurisdiction, the plaintiff must show that the cause of action “arises out of” or is �...
2020.02.27 Demurrer 539
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.27
Excerpt: ... interest of about $55,000 of JP Morgan Chase & Co. stock. Plaintiff/Cross‐Defendant U.S. Bank National Association's Demurrer to Defendants/CrossComplainants Jennifer and Frank Rosenblum's 11‐21‐19 Cross‐Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). Without chronicling the parties' extensive litigation history regarding this property (located at 35 Echo Lane in Woodside, Ca.), the Rosenblums' 11‐21‐19 C...
2020.02.26 Motion for Summary Judgment 558
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.26
Excerpt: ...e and his proposed order was used to grant the motion. Accordingly, the Court finds proper notice. The unopposed motion for summary judgment by Defendant JOSEPH J. ALBANESE, Inc. is GRANTED. Defendant's request for judicial notice is granted as to Exhibit A (Complaint) and Exhibit I (Request for Dismissal). Defendant's request for judicial notice of Exhibits K, L, M, N, and O (Google Maps) is DENIED. The distances between two points is not part o...
2020.02.26 Motion to Complete Discovery 901
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.26
Excerpt: ... diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of time tha...
2020.02.26 Motion to Withdraw and Amend Request for Admission Response 901
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.26
Excerpt: ...dvertence or excusable neglect.” CCP § 2033.300(b); see New Albertsons, Inc. v. Sup.Ct. (Shanahan) (2008) 168 CA4th 1403, 1418. While newly discovered evidence can meet this standard, Defendants have not shown that their admission resulted from “mistake, inadvertence or excusable neglect.” The evidence shows that Defendants were on notice of the existence of the French drain since March 2017. Miller decl., Ex. F, H. In fact, it was defense...
2020.02.25 Motion for Leave to Amend Complaint 194
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.25
Excerpt: ...se of action for declaratory relief “concerning the real party in interest on the lease.” Separate Stmt. of Amendments. Plaintiff claims it “mistakenly used the wrong legal name for the corporation in the complaint,…” Notice of Motion filed December 23, 2019 at 1:10‐12. Trial was originally set for December 2, 2019, assigned a trial judge, and trial was continued so that the Law and Motion department could decide this matter. Trial is...
2020.02.25 Motion for Entry of Judgment 699
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.25
Excerpt: ...ahri (“Plaintiffs”) admit that they did not file and serve a Motion to Strike or Tax Costs. (See Plaintiffs' Opposition, p.2:2; see also Cal. Rules of Court Rule 3.1700(b).) Instead, Plaintiffs claim that the court should not award Defendants such costs because the time to appeal had not expired, and therefore these cost bills were premature. Plaintiffs offer no authority to support of this argument though. Rule 3.1700(a) requires that a part...
2020.02.20 Demurrer 718
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.20
Excerpt: ...5,000 in stock in Wells Fargo & Co New Del (WFC). Upon learning of a prior motion involving Wells Fargo, she had the stock sold on or about February 10, 2020. Cross‐Defendant Wells Fargo's demurrer to the first, second, fourth, and fifth causes of action asserted in Cross‐Complainants Ely and Sonia Tangonans' Second Amended CrossComplaint is SUSTAINED without leave to amend, for the reasons set forth below. The demurrer to the third cause of ...
2020.02.20 Demurrer 273
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.20
Excerpt: ...f action is OVERRULED. Plaintiff has not alleged facts sufficient to support a claim for negligence, considering the only causation allegations concern remarks Defendants allegedly made about Plaintiff to others. The allegations concerning these remarks are insufficient to support a cause of action since Plaintiff has not alleged facts indicating the defamatory nature of the remarks. Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645. The Complain...
2020.02.19 Motion to Strike 501
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.19
Excerpt: ...raphs. “A motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph . . . .” (CRC Rule 3.1322(a).) The Notice of motion fails to identify any word, phrase, sentence, or other set of allegations that Cross‐defendant moves to strike. The motion is denied to the extent it is based on the sham pleading doctrine. The argument is that Edwin Blue's deposi...
2020.02.19 Motion for Terminating Sanctions 133
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.19
Excerpt: ...ponse to discovery, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. In lieu of or in addition to that sanction, the court may impose a monetary sanction. Whether to grant a sanction is entirely within the discretion of the court. The court is not required to grant any particular sanction. See Weil & Brown, California Practice Guide: Civil Procedure Befo...
2020.02.19 Demurrer 501
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.19
Excerpt: ...erruled. The demurrer does not identify the allegedly sham allegations or the deposition testimony that contradicts them. Yancey's Reply Brief identifies them for the first time, which is too late for lack of notice to IRA Services. Even if the court considered each of the statements from the Edwin Blue deposition, the does not explain how those statements dispose of any cause of action. The Court rules on the individual causes of action as follo...
2020.02.18 Motion for Entry of Judgment 792
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.18
Excerpt: ...per § 664.6 because, as demonstrated by the declarations and exhibits submitted in support of the motion, the parties entered into a valid settlement agreement signed by the parties, which agreed to the Court's jurisdiction pursuant to § 664.6 (the “Settlement Agreement”). The 11‐21‐19 Addendum to Settlement Agreement preserves Plaintiff's right to enforce the terms of the Settlement Agreement pursuant to § 664.6. See Cook decl., Ex. 2...
2020.02.18 Demurrer 824
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.18
Excerpt: ...action is SUSTAINED with leave to amend. An action to quiet title may be brought only by one holding an interest in the subject property. (Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 59.) The Complaint alleges that Plaintiff ceased holding any interest in the property after she executed a Deed transferring her entire interest to Nhan Van Pham Trust. (FAC para. 14.) However, an equitable owner may seek to quiet title when the defendant acquir...
2020.02.13 Motion for Summary Judgment 068
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.13
Excerpt: ... Pines”) 11‐26‐18 Cross‐Complaint, and (b) Defendants/CrossComplainants Cary Cole Friar and Tessa Leigh Friar dba First Impressions Design & Landscape's (“First Impressions”) 1‐2‐19 Cross‐Complaint, is DENIED. As to First Impressions' 1‐2‐19 Cross‐Complaint, the motion is DENIED AS MOOT given First Impressions' 1‐31‐20 dismissal of the Cross‐Complaint. As to Pollock Pines' 11‐26‐18 CrossComplaint, the motion is D...
2020.02.11 Petition to Confirm Arbitration Award, for Entry of Judgment 535
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.11
Excerpt: ...n Award and the November 15, 2019 Award of Prevailing Party Attorney Fees and Costs (the “Arbitration Awards”) in favor of Petitioner and against Respondent Diane Josue, individually and as successor trustee of the William Heszler 2000 Living Trust, are confirmed. Pursuant to Code Civ. Proc. Sect. 1286.6, the Court also GRANTS Petitioner's request to modify the Arbitration Awards to include the legal description of the subject property in acc...
2020.02.11 Special Motion to Strike 290
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.11
Excerpt: ...lainants Best Seller Ltd., Alex Abela Properties, Inc. and Alex Abela (“Defendants”), is ruled on as follows: Pursuant to Code of Civil Procedure section 425.16 (anti‐SLAPP statute), Defendants move to strike the entire First Amended Complaint (“FAC”) of Plaintiffs Proud Thai Massage, LLC and Alexander Mayer (“Plaintiffs”), or alternatively to strike ¶¶ 74‐76, 92, 94, 127, 128, 146‐148, 157, 170‐175, 179, 188 and 194. In ord...
2020.02.07 Motion to Quash Deposition Subpoenas 055
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.07
Excerpt: ...ividual Financial Records is GRANTED IN PART AND DENIED IN PART. The Court notes that Plaintiff Postal Instant Press, Inc. to failed to a Separate Statement in compliance with California Rules of Court Rule 3.1345. Nonetheless, the parties have provided sufficient information for the Court to rule on the matter. Bianlou Group, Inc. has agreed that its bank records as requested in the subpoenas may be produced. Therefore, the Court DENIES the moti...
2020.02.07 Motion to Augment Expert Disclosure 099
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.07
Excerpt: ...ess to testify about the $200,000 cost of disk replacement surgery, Defendant did not rely on Plaintiff's initial expert disclosure, since the future surgery was unknown at that time. 2. Prejudice. The parties are already taking additional depositions after the statutory deadline. Defendant's Opposition does not show that adding the deposition of Nurse Gorgan will cause any prejudice. 3. Diligence or Surprise. Dr. Light's recommendation for addit...
2020.02.06 Motion to Compel Further Responses 595
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.06
Excerpt: ...viduals, as opposed to subcontractors. The response should be supplement to identify payments to any individuals who were not paid through the subcontractors who employed or hired them. Interrogatory 22. DENIED. The interrogatory is unreasonably overbroad. As worded, the interrogatory asks for an “identification” of every piece of paper relating to the work on the property. Interrogatory 25. GRANTED. Any amounts that third parties billed ( �...
2020.02.06 Demurrer 648
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.06
Excerpt: ...iff has exhausted his administrative remedies. Defendants do not dispute that they were correctly named in Plaintiff's administrative complaint or that they are former employees of Defendant Broadmoor Police Protection District (“Broadmoor”). Instead Defendants argue that Plaintiff failed to exhaust his administrative remedies because he did not provide Defendants' addresses. Broadmoor's address is sufficient here. See, e.g., Martin v. Fisher...
2020.02.05 Motion to Compel Further Responses, Request for Sanctions 569
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.05
Excerpt: ...fessionalism in the meet and confer process. The only remaining outstanding issue regarding Plaintiffs' motion to compel further request for documents is whether Defendants must produce further documents in response to Plaintiffs' request no. 158, which provides: “All DOCUMENTS produced by YOU in the class action In re Volkswagen Timing Chain Product Liability Litigation, United States District Court, District of New Jersey, Case No. 2:16‐cv�...
2020.02.05 Demurrer 266
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.05
Excerpt: ... (interference with contract) is OVERRULED. The demurrer fails to show that no contract existed. The argument that Plaintiff's partnership with WORKING DIRT already “fell apart” and “already collapsed” before Defendants became involved does not negate the existence of a contract. The demurrer also fails to show that no interference occurred. Defendants argue that the Complaint fails to allege that Defendants committed acts to induce WORKI...
2020.02.04 Motion for Summary Adjudication 778
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.04
Excerpt: ...a fraud cause of action. See Oakland Raiders v. Nat'l Football League (2005) 131 Cal.App.4th 621, 629 (“[T]he pleadings set the boundaries of the issues to be resolved at summary judgment.”). The Court recognizes Plaintiff has filed a motion seeking leave to amend the Complaint, for the purpose of asserting a fraud cause of action. Nonetheless, GM cites no authority indicating the Court may summarily adjudicate a potential cause of action tha...
2020.02.04 Demurrer 021
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.04
Excerpt: ...ct is SUSTAINED WITH LEAVE TO AMEND to allege facts sufficient to support a contract between the parties. Plaintiff alleges in her complaint that an oral agreement was made between her and Defendants. Plaintiff has failed to allege the element of consideration. “The statutory presumption of consideration . . . does not, of course, apply to an oral contract. In an action on such an agreement, the essential element of consideration must normally ...
2020.02.03 Motion to Dismiss or Transfer Case 045
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.02.03
Excerpt: ..., rather than mandatory. For venue to “lie” in a certain place means that venue is proper or sustainable in that place. Under this definition, the forum selection clause states that all disputes shall be proper or sustainable in Florida. “Shall lie” does not mean “must be filed” or “must be prosecuted.” Thus, the forum selection clause does not mean that all disputes must be filed or tried in Florida to the exclusion of any other ...
2020.01.31 Motion to Set Aside Entry for Default, Judgment 501
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.31
Excerpt: ...ion 473.5 is DENIED. A court may only set aside a default under CCP § 473.5 if the cross‐defendant did not receive “actual notice” in time to defend the action. The evidence shows that SVP received actual notice of the summons and cross‐complaint on June 10, 2019, more than 30 days before default was entered. (See Todd Yancey's Declaration.) SVP's Motion to Set Aside Entry of Default under CCP section 473 is DENIED. The Court recognizes ...
2020.01.30 Demurrer 039
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.30
Excerpt: ...gly, Defendant's demurrer is sustained pursuant to Cal. Code of Civ. Proc. § 430.10(f). Additionally, Pursuant to 47 U.S.C. § 230, Defendant is immune from liability for tort claims arising from information provided by another information content provider. See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 802–803. Accordingly, to the extent Plaintiffs' claims are based on “hate speech and racially charged bullying commen...
2020.01.29 Demurrer 731
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.29
Excerpt: ...for Judicial Notice is GRANTED; however, the Court does not take judicial notice of the truth of any factual assertions in these documents. (See Arce v. Kaiser Health Foundation Plan, Inc. (2010) 181 Cal.App.4th 471, 483 [court takes judicial notice of documents as records of any court of this state, but does not take judicial notice of the truth of any factual assertions in these documents].) As to the demurrer, the Court notes that this demurre...
2020.01.27 Motion for Summary Judgment 897
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.27
Excerpt: ...mba (“Plaintiff”) is DENIED. Defendants move for summary judgment on the ground that no triable issue of material fact exists as to whether Defendants had notice of a dangerous condition and whether the alleged dangerous condition caused Plaintiff's fall. As the moving party, Defendants have the initial burden to show that either (1) one or more elements of Plaintiff's causes of action cannot be established, or (2) that there is a complete de...
2020.01.27 Motion to Stay or Dismiss Claims 683
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.27
Excerpt: ...19 per Code Civ. Proc. § 418.10, is GRANTED‐ IN‐PART and DENIED‐IN‐PART. As to all Plaintiffs, the Motion to Dismiss is DENIED. The Motion to Stay is GRANTED‐IN‐PART, as set forth below. As to Plaintiffs Strahan and Manno, the Motion to Stay pending resolution of the Indiana Action (Genesys Telecommunications Laboratories, Inc. v. Talkdesk, Inc. et. al., Case No. 1:19‐CV00695‐TWP‐DML) is GRANTED. Both Strahan and Manno signed e...
2020.01.27 Motion to Dismiss or Stay Parallel Proceedings 683
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.27
Excerpt: ... as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action. Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804. Given the Court's ruling on Genesys' Motion to Stay per Code Civ. Proc. § 418.10, as to Plaintiffs Strahan and Manno, this motion is DENIED AS MOOT. As to Plaintiffs TalkDesk and Hertel, the motion is also DENIED. Genesys argues ...
2020.01.24 Motion for Summary Adjudication 242
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.24
Excerpt: ...and are hearsay. The Declaration of Tom Scherer para. 4 does refer to an agreement, but does not attach the agreement or authenticate Exhibit 9 to the Miller deposition. The Court SUSTAINS Plaintiff's objection numbers 18 and 19 to the Declaration of Scherer paragraph 8 at 3:22 – 4:1 as lacking foundation and failing to show personal knowledge and the reference to a document is hearsay. The Court does not rule on Plaintiff's remaining objection...
2020.01.23 Motion for Summary Judgment, Adjudication 212
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.23
Excerpt: ...stated claims, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff has failed to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account and account stated claims is GRANTED. Plaintiff presents evidence to establish all the elements of both its open book account and account stated claims. (See Plaintiff's State...
2020.01.22 Motion for Summary Judgment, Adjudication 360
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.22
Excerpt: ...Defendants' Evidence as to Exhibits A, B, G are OVERRULED. Plaintiffs' objections to Exhibits J and K are SUSTAINED based on hearsay. The standards for summary judgment are well‐known and the Court will not repeat them here. BACKGROUND FACTS It is undisputed that on May 31, 2013, Plaintiffs purchased a BMW from defendant Peter Pan Motors, Inc. UMF No. 1. Thereafter, on November 3, 2015, the National Highway Traffic Safety Administration (“NHT...
2020.01.22 Motion for Summary Adjudication 335
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.22
Excerpt: ...ement (see Code Civ. Proc. § 437c(b)(3)), the Court finds that Plaintiff has not met his initial burden under § 437c, and thus the motion must be denied. In this case, Plaintiff and Defendant were are former spouses. Prior to their marriage, Plaintiff's mother loaned the couple $100,000 to purchase a home. Plaintiff claims that the parties executed a note for the loan, which note Defendant denies signing. The parties forgot about the note for o...
2020.01.22 Demurrer 950
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.22
Excerpt: ...s that this is actually the Second Amended Complaint. Nevertheless, since the parties refer to it as the Fourth Amended Complaint, the court likewise refers to this pleading as the Fourth Amended Complaint (“FOAC”). (2) Defendant requests judicial notice of the following documents filed in this action: (a) the FOAC; (b) the Order on the Demurrer to Complaint; (c) the Order on the Demurrer to the First Amended Complaint; and (d) the First Amen...
2020.01.22 Demurrer 648
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.22
Excerpt: ...ment/discrimination/retaliation” based upon Defendants' contention that Plaintiff incorrectly named himself and Broadmoor in his administrative complaint, the parties are to appear (telephonic appearances are acceptable but not preferred) to further argue the issue. The Court invites further citation to authority. If counsel is going to cite to new authority, counsel shall, before the hearing provide opposing counsel with the citations of that ...
2020.01.17 Motion for Summary Adjudication 696
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.17
Excerpt: ...nd failing to cap the gas pipe that led to the dryer was not the legal cause of the explosion and fire that injured plaintiffs. See defendants MPA at 8:1‐3. On October 30, 2019 plaintiffs filed a statement indicating they do not oppose the motion. The unopposed motion is granted. Defendants have met their moving burden under CCP §437c(p)(2). The declaration of mechanical engineer Steve Virostek states that, in his professional opinion, the lea...
2020.01.16 Motion to Compel Further Responses 290
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.16
Excerpt: ...pel Further Responses to Request for Production Number 53 and Request for Sanctions against Plaintiff Proud Thai Massage LLC (“Plaintiff”) is GRANTED in part. Defendant demonstrates good cause for the production of the QuickBooks. TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448. Plaintiff, through the declarations of Alexander Mayer and Amira Sharon, demonstrates that the QuickBooks contain confidential information no...
2020.01.16 Motion to Compel Arbitration and Stay Action 168
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.16
Excerpt: ...des the threshold issue of the arbitration agreement's enforceability, and the scope of the issues to be arbitrated. However, parties may delegate resolution of those threshold issues to an arbitrator as long as the parties' agreement “clearly and unmistakably” delegates that authority to an arbitrator, and the delegation clause is not invalid on state law grounds such as fraud, duress or unconscionability. Pinela v. Neiman Marcus Group, Inc....
2020.01.15 Motion for Leave to File Amended Complaint 954
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.15
Excerpt: ... Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts apply such a liberal policy at any stage of the proceedings, up to and including trial. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) If the motion to amend is timely made and granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal results in a party being deprived of the right to assert a meritorious cause of...
2020.01.15 Motion for Summary Adjudication 637
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.15
Excerpt: ...udication, a plaintiff has met its burden of showing that there is no defense to a cause of action if that party has proved each element of a cause of action to entitle the party to judgment on the cause of action. (C.C.P. § 437c(p)(1).) Once the plaintiff has met its burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) Plaintiff prese...
2020.01.15 Motion to Enforce Settlement and Enter Judgment 417
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.15
Excerpt: ...October 28, 2019. The principal amount of Judgment shall be $21,750.00. B. Prejudgment Interest Defendants defaulted on the $5,250 payment that was due September 1, 2019. For the September 2019 payment Defendants paid $2,500 on October 4, 2019. Plaintiff subsequently agreed to accept $1,000 per week. Defendants made two $1,000 payments. The next payment was due October 28, 2019, but Defendants made no more payments. An “Event of Default” occu...
2020.01.14 Motion for Summary Judgment, Adjudication 696
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.14
Excerpt: ...ls as a matter of law because negligence per se is an evidentiary presumption and not a separate cause of action; 2. Plaintiffs' Cause of Action Nos. 3 and 4 predicated on violations Placer County Building Code, Article 15.12 et seq., fail as a matter of law because Article 15.12 was unenforceable at the time of the incident; 3. Even if Plaintiffs' negligence claims survive Article 15.12's unenforceability, Plaintiffs lack sufficient evidence to ...
2020.01.13 Demurrer 013
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.13
Excerpt: ...ot allege any property damage or personal injury. Demurrer to the second cause of action (breach of contract) is SUSTAINED with leave to amend. First, the pleading identifies two contracts in paragraph 6, but nothing in the pleading alleges whether either contract was oral, written, or implied. Second, the pleading does not allege the contractual obligations that were breached; it does not allege the terms of the contract either in haec verba or ...
2020.01.10 Motion for Protective Order 161
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.10
Excerpt: ...ART. Cross‐Defendants establish that the subpoena served by Cross‐ Complainants Omer Tamturk and the Erler Family Trust (“Cross‐Complainants”) on Stefan Financial, includes documents that contain Cross‐Defendants' personal financial information and tax returns. (See Stefan Decl.) The California Constitution, Article I, section 1 protects a person's financial privacy. See also Britt v. Superior Court (1978) 20 Cal.3d 844; Cobb v. Sup. ...
2020.01.10 Demurrer 541
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.10
Excerpt: ...ND. The complaint is based on Defendant's alleged representation that it would try to gain US Customs approval for the same 5.92 percent customs rate for SINO‐MAPLE, but failed to do so. Nothing in this claim suggests that the acts were fraudulent, unlawful, or unfair (as that term is used in the UCL), including there is no allegation of any law that was violated. Plaintiff's conclusory allegation in paragraph 69 are insufficient. Defendant's a...
2020.01.08 Motion to Compel Further Responses, Request for Monetary Sanctions 393
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.08
Excerpt: ...nd (d), Defendant should be compelled to provide facts supporting its denial of Plaintiffs' requests to admit that Defendant's agents had not determined that Plaintiff's conduct had met the definition of “cause” as set forth in the parties' employment agreements. Plaintiff acknowledges that Defendant has responded that its denial is based on its in‐ house counsel's determination that Plaintiff “was not forthcoming about the veracity of th...
2020.01.08 Motion to Compel Arbitration 090
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.08
Excerpt: ...nd attached Exh. A.) California law favors arbitration. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Plaintiff Mark Smoot (“Plaintiff”) argues that the arbitration provision in the offer letter is unenforceable because it is unconscionable. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 7...
2020.01.08 Motion for Summary Adjudication 847
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.08
Excerpt: ... fraud, oppression or malice by Defendant to support punitive damages. The Court rules on the motion as follows: Defendant's unopposed motion for judicial notice is GRANTED. Plaintiff's objection to Defendant's Exhibit L is SUSTAINED based upon hearsay, lack of personal knowledge and authentication. Plaintiff alleges that Defendant failed to: (1) warn about permanent collagen destruction; (2) properly train purchasers; and (3) advise that the dev...
2020.01.06 Motion to Set Aside Entry of Default 747
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.06
Excerpt: ...arties' briefing and finds that the 11‐08‐19 Watanabe declaration sufficiently demonstrates the default occurred because Tesla's in‐house counsel mistakenly/inadvertently failed to promptly assign the matter to local litigation counsel. The Court strongly favors resolving cases on their merits. The 08‐ 19‐19 default should be and HEREBY IS SET ASIDE. Where relief is based on attorney fault, §473(b) requires the Court to direct the atto...
2020.01.06 Motion for Summary Judgment, Adjudication 368
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.06
Excerpt: ... Code Civil Procedure §437c. The Motion for Summary Judgment and Summary Adjudication of the Loves' claims is DENIED as moot, in light of the voluntary dismissal of the Loves' Cross‐Complaint on 12/11/19. Sereno has established each of the elements of its cause of action for breach of contract. The Loves agreed to pay Sereno 5% of the purchase price of the subject property if buyers completed the transaction or were prevented from doing so by ...
2020.01.03 Motion for Summary Judgment 847
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.03
Excerpt: ... and did not cause Plaintiff's injuries. The Court denied Defendants' motion on June 24, 2019. (See June 24, 2019 Minute Order, of which the Court takes judicial notice on its own motion.) Now, in this motion, Defendants once again assert that they complied with the applicable standard of care and did not cause Plaintiff's injuries. However, Defendants have not presented any newly discovered facts or circumstances, or law, that support reconsider...
2020.01.03 Demurrer 914
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.03
Excerpt: .... §430.10(e). The Fourth Cause of Action sufficiently alleges the elements of fraud by intentional misrepresentation. See CACI 1900; FAC, ¶¶40‐49. Defendants appear to argue they cannot or should not be held liable for their alleged false representations because they signed the 2016 forms in their capacity as purported Director or Partners of the LLC. Even if this argument otherwise had merit, it fails here because, as alleged, the LLC disso...
2020.01.02 Motion for Relief from Stay 073
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.02
Excerpt: ...o Strike Punitive Damages decided. Code Civ. Proc. §1281.4. The Court finds that resolution of this issue will not frustrate the arbitrator's jurisdiction since WIN is not a party to the arbitration and whether WIN faces exposure for punitive damages will not impact any issue in the arbitration. However, the pending punitive damages' exposure to WIN, which is not covered by insurance, does have a substantial impact on WIN. Therefore, the Court l...
2020.01.02 Motion for Judgment on the Pleadings 569
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2020.01.02
Excerpt: ...c. Code § 438(h). 1 st COA – Breach of Express Warranty Defendant contends Plaintiffs have failed to assert a cause of action for breach of express warranty because Plaintiffs have not alleged the “latent defect” in the timing chain system manifested itself during the five‐year express warranty period. According to Defendant, “the warranty expired over six months before Plaintiffs filed their First Amended Complaint on January 18, 2019...
2019.9.30 Motion to Stay of Forum Non Conveniens 913
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.30
Excerpt: ...t. The parties to this case are involved in two simultaneously‐pending cases, apparently involving the same subject matter—this case and another in Wisconsin. See Matrix's 7‐ 2‐19 Motion, Ex. A (attaching Complaint filed in Wisconsin Circuit Court, captioned Matrix IT Medical Tracking Systems, Inc. v. Time Traveller, Inc. and Vitaly Golomb, Case No. 2019CV000968). In the present motion to stay, Matrix seeks to stay this case in favor of t...
2019.9.30 Demurrer 731
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.30
Excerpt: ...nce and breach of fiduciary duty is based on the claim that Defendants did not owe her a duty because she was not a named beneficiary of the CWK trust. According to Defendants, “Because Plaintiff fails to allege any facts qualifying her as an expressly designated recipient of any provision in the CWK Trust gifting her the bequest she now seeks (i.e., a provision in the CWK Trust shielding her from tax liability), the Defendant Attorneys owed he...
2019.9.30 Petition to Compel Arbitration and Request for Stay, Motion to Amend Complaint 337
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.30
Excerpt: ...gust 29, 2019 declaration in support of motion to amend complaint, ¶¶13, 15. This confirms Lyft's electronic records which show that Plaintiff consented to Lyft's terms on more than one occasion; and is sufficient to establish that the electronic signature affixed to these consents is attributable to Plaintiff, and that a valid contract to arbitrate was created. Plaintiff further admits that he did not opt out of these previous arbitration agre...
2019.9.27 Motion for Summary Judgment 503
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.27
Excerpt: ...fore, Plaintiff has failed to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account and account stated claims is GRANTED. Plaintiff presents evidence to establish all the elements of both its open book account and account stated claims. (See Plaintiff's Statement of Undisputed Facts nos. 1, 3, 4, 6‐8, 10‐13, and 15‐17.) Defendant failed to oppos...
2019.9.26 Motion to Tax Costs 510
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.26
Excerpt: ...” As a result, the motion to tax costs for CCP § 638 trial fees is GRANTED in the amount of $39,444.00. Trial Technology Support Services Defendant contends that Plaintiff's costs for trial technology support services are not allowable under CCP 1033.5(c)(4) because they were not “reasonably necessary to the conduct of the litigation.” As the party opposing costs, Defendant bears the burden of demonstrating that the costs were not reasonab...
2019.9.26 Demurrer 390
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.26
Excerpt: ..., 2019) No. 19‐CV‐00114‐YGR, 2019 WL 2423375, at *3, 4.) All four causes of action are based on the allegation that Defendant censored or interfered with Plaintiff's speech. (SAC para. 37, 40, 43, 45, 49, 52.) Since all claims treat Defendant as a publisher of content provided by another information provider (Plaintiff), the CDA immunizes Defendant from liability as to all claims. Plaintiff argues that his first and second causes of action ...
2019.9.25 Demurrer 442
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.25
Excerpt: ...othy Anderson and Elizabeth Cullinan (collectively “Cross‐Defendants”) to the Cross‐Complaint of Defendant/Cross‐ Complainant Florence Fang (“Cross‐Complainant”) is ruled on as follows: (1) The Town of Hillsborough's Demurrer to the First Cause of Action for Violation of the Fair Housing Act is SUSTAINED WITH LEAVE TO AMEND for Cross‐Complainant to cite the specific statute under which she is bringing this claim. (2) Cross‐Def...
2019.9.24 Motion to Compel Deposition 118
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.24
Excerpt: ...for sanctions, filed 8‐8‐19, is GRANTED‐IN‐PART, as set forth below. The motion to compel the deposition of AAC's person most knowledgeable (PMK) is GRANTED‐IN‐PART. The motion has merit, for multiple reasons. First, the Court already denied AAC's “Motion for Temporary Stay, to Quash, and to Continue the Date of the Deposition,” in which AAC made the same argument that it simply re‐hashes here. See 7‐24‐19 Minute Order. ACC ...
2019.9.24 Motion for Summary Judgment 684
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.24
Excerpt: ...izable claim to an easement on Defendant's property. Defendant separates her arguments with respect to the individual and entity Plaintiffs, based on her claim that the 1907 subdivision map is referenced in the deed to 655 Miramar Dr., Parcel 1, the adjacent property owned by entity Plaintiff TEG Partners, LLC, but that the 1907 map is not referenced in the deed to 18 Terrace Avenue, the nonadjacent property owned by the individual Plaintiffs. Al...
2019.9.23 Motion to Set Aside Default, Vacate Default Judgment
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.23
Excerpt: ...e record that the judgment should not have been entered; however, a judgment valid on its face but void for improper service is governed by analogy to Code of Civil Procedure section 473.5 and therefore relief in the same action must be sought no later than 2 years after entry of the default judgment. (See Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121‐1122.) Defendant contends here that the judgment is void because she was not properly se...
2019.9.23 Motion for Summary Judgment, Adjudication 443
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.23
Excerpt: ... to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause(s) of action cannot be established, or there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). On summary judgment or adjudication, the court considers all of th...
2019.9.20 Motion for Protective Order 123
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.20
Excerpt: ...d the deposition of Mercado in her individual capacity. Mercado previously appeared for deposition after Defendant designated her as Defendant's person most qualified to testify for Defendant. Plaintiff is not precluded from taking Mercado's deposition in her individual capacity under Code of Civil Procedure section 2025.610(c)(1). Defendant now seeks a protective order as to further deposition of Mercado pursuant to Code of Civil Procedure secti...
2019.9.19 Motion for Summary Judgment 382
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.19
Excerpt: ... other common count claims for: (1) money had and received, (2) for goods, wares and merchandise sold and delivered, (3) for money lent, and (4) for money paid out. (See Complaint, Second Cause of Action for Common Counts, ¶¶ CC‐1(b)(1), (3), (4) and (5).) Plaintiff fails to address these claims, and therefore has not met its initial burden of proving these claims such that it is entitled to judgment as a matter of law. Further, summary adjud...
2019.9.19 Motion for Attorney's Fees 084
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.19
Excerpt: ...rney's fees. The complaint has not been dismissed as to Defendant; no judgment has been entered by which “neither plaintiff nor defendant” obtained any relief; no judgment has been entered by which Plaintiff has not recovered any relief against Defendant. (See Code of Civ. Proc. Sect. 1032, subd. (a)(4).) The case of Profit Concepts Management, Inc. v. Griffith (2008) 162 Cal.App.4th 950 is inapplicable. In that case, the defendant was deemed...
2019.9.19 Demurrer 789
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.19
Excerpt: ...� 15610.30 is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). The TAC does not allege PSI directly engaged in financial abuse, rather, it alleges PSI “assisted” Defendant Khalid in committing financial abuse by failing to provide Plaintiff Riley with “mandated” counseling services, and by failing to conduct sufficient due diligence to confirm the Trust's proper Trustee, and to confirm whether Khalid was Riley's attorney‐in�...
2019.9.18 Motion for Summary Judgment 383
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.18
Excerpt: ... § 437c(p)(1).) Plaintiff's motion only addresses the common count claims for open book account and account stated, but the Complaint also alleges other common count claims for: (1) money had and received, (2) for goods, wares and merchandise sold and delivered, (3) for money lent, and (4) for money paid out. (See Complaint, Second Cause of Action for Common Counts, ¶¶ CC‐1(b)(1), (3), (4) and (5).) Plaintiff fails to address these claims, a...
2019.9.9 Motion for Interlocutory Judgment 889
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.9
Excerpt: ...defaulted under the terms of the Settlement Agreement and that the Settlement Agreement provides for entry of judgment, it is unclear whether the Court may enter judgment at this time. A partition complaint shall set forth “[a]ll interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that plaintiff reasonably believes will be materially affected by the action, whether the n...
2019.9.6 Motion to Compel Arbitration and Stay Proceedings 905
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.6
Excerpt: ... et. seq.; Armendariz v. Foundation Health Psychcare Services Inc. 24 Cal.4th 83, 97 (2000) (“California law, like federal law, favors enforcement of valid arbitration agreements.”); Cione v. Foresters Equity Services, Inc. 58 Cal.App.4th 625, 642 (1998) (a heavy presumption weighs in favor of enforcing arbitration agreements). Although arbitration is a matter of contract, non‐signatories to arbitration agreements may be bound by an agreeme...
2019.9.5 Demurrer 019
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.5
Excerpt: ...redited) 06‐10‐19 Cross‐Complaint (XC) is OVERRULED. Code Civ. Proc. §430.10(e). A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading, that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. All properly pleaded facts are assumed true. Chavez v. Indymac Mortg. Servs. (2013) 219 Cal.App.4th 1052, 1057. In ruling on a demurrer, the trial court is required to ...
2019.9.4 Motion to Contest Good Faith Settlement 904
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.4
Excerpt: ...settling party DKS on January 25, 2019, which was prior to this Application being filed on April 10, 2019. Upon dismissal, the court lost jurisdiction over DKS. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425 (voluntary dismissal deprives court of subject matter and personal jurisdiction).) “Where the plaintiff has filed a voluntary dismissal of an action …, the court is without jurisdiction to act further …, and any subsequent order...
2019.9.3 Demurrer 123
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.3
Excerpt: ...ion against it because it has no duties to third parties under Bus. & Prof. Code § 24074. This argument, however, was squarely rejected in Cohn v. Gramercy Escrow Co., 65 Cal. App. 3d 884, 892–93 (Ct. App. 1977). In that case, which relied on decisions in Grover Escrow Corp. v. Gole, 71 Cal.2d 61 (1969) and Doyle v. Coughlin 37 Cal.App.3d 911 (Ct. App. 1974), the court held as follows: The provisions of [Section 24074] are mandatory and as suc...
2019.9.2 Motion to Compel Arbitration 782
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.2
Excerpt: ...aintiff's complaint seeks payment for work performed at that project. Therefore, Plaintiff's complaint is a dispute that relates to the Agreement. Plaintiff does not demonstrate that the Agreement is procedrually unconscionable. Defendant sent the Agreement to Plaintiff in the evening of October 21, 2018. That same evening, Plaintiff responded “the contract is good and will sign it.” (Email from Gaddis to Lee, September 21, 2018, Exhibit 3 to...

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