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2019.12.27 Demurrer 365
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2019.12.27
Excerpt: ...cted with the requisite intent to cause damage to Plaintiff. See CACI No. 1320. Defendant Michael Solomon's Demurrer to the “motor vehicle” negligence cause of action is OVERRULED. Plaintiff has asserted factual allegations in the Complaint sufficient to constitute a cause of action for motor vehicle negligence. Though the allegations are contained in an attachment labeled “general negligence,” Plaintiff's form Complaint asserts only inte...
2019.12.27 Motion for Summary Judgment, Adjudication 967
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2019.12.27
Excerpt: ... an open book account and an account stated. However, Plaintiff also asserts claims for goods sold and delivered and credit extended on account. The alternative Motion for Summary Adjudication is GRANTED as to the claim based on an open book account. Plaintiff has met its burden to show that there is no defense to this cause of action. CCP §437c(p)(1). See Undisputed Material Facts 1‐8; LaRosa Declaration ¶¶5 ‐8, 10‐12 and Exs. A‐C. Th...
2019.12.23 Demurrer 210
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2019.12.23
Excerpt: ...ny cause of action and also cannot be determined at the demurrer stage. The Court has jurisdiction over the case because Business & Professions Code section 6200 et seq. does not divest the Court of jurisdiction to hear the case. Business & Professions Code section 6201 provides: “[A]n attorney shall forward a written notice to the client prior to or at the time of service of summons or claim in an action against the client.... The written noti...
2019.12.23 Motion for Judgment on the Pleadings 712
Location: San Mateo
Judge: Fineman, Nancy L
Hearing Date: 2019.12.23
Excerpt: ...tered a dismissal he signed, which requested dismissal of the ‘Entire action of all parties and all causes of action.” The filing of a dismissal has immediate effect, rendering subsequent proceedings void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931. The dismissal has caused confusion since only Xie signed it. It may be that this dismissal was meant to dismiss plaintiff Wang's claims, but there is no evidenc...
2019.12.20 Motion for Terminating Sanctions 778
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.20
Excerpt: ...ovember 12, 2019, ruling, Defendant previously moved to set aside the default and default judgment entered against her on March 2, 2009 on the basis that she was never served with the summons and complaint. Judge Brown denied the motion without prejudice on September 23, 2019. Defendant then moved to set aside the renewal of judgment on the basis that she did not receive notice of the Notice of Renewal filed on March 19, 2018. Defendant made her ...
2019.12.18 Motion for Entry of Dismissal 442
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.18
Excerpt: ...proposed order, submitted with its moving papers on April 23, did not specify whether the action is dismissed with or without prejudice. The court's tentative ruling granting Defendant's motion also did not state that the matter was dismissed with prejudice. Defendant points to the following portion of the transcript from the July 8 hearing on the motion to dismiss or stay as support for its request that the matter be dismissed with prejudice: TH...
2019.12.17 Motion for Summary Judgment, Adjudication 620
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.17
Excerpt: ...t (1) Plaintiff is limited to the exclusive remedy of workers' compensation benefits, and that under Privette v. Superior Court (1993) 5 Cal. 4th 689, Plaintiff is precluded from recovering against KENMARK, the hirer of a contractor, and (2) the evidence does not support the “retained control” exception to Privette. Privette does not apply to this case because Plaintiff's employer, CBC, is not the contractor whose negligence is alleged to hav...
2019.12.17 Motion for Summary Judgment, Adjudication 620 (2)
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.17
Excerpt: ... motion to preclude a res ipsa loquitur instruction lacks merit. (The purpose behind this portion of the motion is unclear because even if res ipsa loquitur does not apply, that does not dispose of the entire cause of action.) “There can be no doubt that the doctrine of res ipsa loquitur is applicable to a factual situation involving injury resulting from the collapse of a scaffold.” (Biondini v. Amship Corp. (1947) 81 Cal.App.2d 751, 767.) R...
2019.12.17 Motion to Set Aside Default, Vacate Judgment 108
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.17
Excerpt: ...dure section 473 where it is clear from the face of the 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 tha...
2019.12.16 Motion for Leave to File Amended Complaint 752
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.16
Excerpt: ... 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 action. (...
2019.12.12 Motion for Summary Judgment, Adjudication 752
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.12
Excerpt: ...yd J. DeMartini (“DeMartini”) for Summary Judgment, or in the Alternative, Summary Adjudication, on the First Amended Complaint (“FAC”) of Plaintiff Fuentebella Enterprises, LLC (“Fuentebella”) is ruled on as follows: (1) DeMartini's and Fuentebella's Requests for Judicial Notice are GRANTED. (2) For purposes of a motion for summary judgment/summary adjudication, a defendant has met his or her burden of showing that a cause of action ...
2019.12.12 Motion to Expunge Lis Pendens 786
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.12
Excerpt: ...tion that an equitable lien survived the statute of limitations bar is contrary to current law, Cal. Civ. Code § 882.030, and Plaintiff fails to address all evidentiary issues concerning Mr. Goldstein's Will. Moreover, Plaintiff's assertion that Plaintiff and Option One lacked actual knowledge of the vesting issue does not refute the evidence demonstrating that Option One was on notice that Defendant was a record owner of the subject property as...
2019.12.12 Motion for Terminating Sanctions 368
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.12
Excerpt: ...DIN‐PART and DENIED‐IN‐PART. The request for terminating and issue sanctions is DENIED. The request for evidentiary and monetary sanctions is GRANTED‐IN‐PART, as set forth below. These consolidated cases arise from a cancelled real estate sales transaction involving the Love Cross‐Complainants' property in East Palo Alto. After the prospective sellers (the Loves) refused to sell the property as contemplated by the Listing Agreement, t...
2019.12.10 Application for Writ of Attachment 235
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.10
Excerpt: ...se attachment is purely a statutory remedy, it requires strict construction with the statutory requirements. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1107; Code Civ. Proc. § 482.030 (the Legislature directed the Judicial Council to promulgate forms to implement the attachment law). First, Plaintiff did not serve Notice of the Application and hearing using Judicial Council Form AT‐115 (“Notice of Applicat...
2019.12.9 Motion for Summary Judgment, Adjudication 548
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.9
Excerpt: ...causes of action in Plaintiff's Complaint. Additionally, triable issues of material fact exist as to whether a union member who receives a discharge letter may always remain on the job (SSUMF 12/14; O'Mahony Decl. for Defendant, vs. Bourn Decl. Exhs. J, K and Chinn Depo. pp. 29:9‐30:2 and Woulfe Depo. pp. 40:8‐24 for Plaintiff); whether UPS Labor Relations pursued Barefield's termination for the June 15, 2016 incident (SSUMF 19; Woulfe Decl. ...
2019.12.9 Application for Right to Attach Order and for Issuance of Writ of Attachment 598
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.9
Excerpt: ...$6,217,681. Ms. Dolch has not provided declarations or documentary evidence supporting the probable validity of her underlying claim or the amounts sought in the application. Rather, she relies on her verified § 850 Petition to support the application. According to the § 850 Petition, In December 2016, Angelique escorted Nellie to a Charles Schwab office and, without Bob's knowledge or consent, transferred more than $1.5 million of community pr...
2019.12.6 Motion for Summary Judgment, Adjudication 136
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.6
Excerpt: ...on alleging a violation of Civ. Code § 2923.6 (“dual‐tracking”), the Motion for Summary Adjudication is DENIED. The parties agree that the version of § 2923.6 in effect in 2017 barred a foreclosure sale while a complete loan modification application was “pending.” Ocwen argues there was no pending application at the time of the 7‐20‐17 sale. Ocwen points to documentary evidence showing that from Nov. 2016 to May 2017, Ocwen denied...
2019.12.5 Demurrer 602
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.5
Excerpt: ...ourt found that “it was the intention of the parties to the contract between [attorney] Dunnigan and Max Orloff that said Max Orloff should not have the right to settle or dismiss or compromise the aforementioned actions without the consent of his attorney, and that, if said Orloff did so dismiss said actions, he was required to pay as a penalty therefor the sum of $1,000 to his said attorney.” Id., at 747. The trial court found this provisio...
2019.12.3 Demurrer 581
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.3
Excerpt: ...roc. § 430.10(e). As an initial matter, Code Civ. Proc. § 1005 requires service of Opposition briefs either by personal service or by means of next‐day delivery at least 9 court days prior to the hearing. In this case, it appears Plaintiffs did not serve their Opposition brief at all. There is no Proof of Service on file. WF's counsel apparently became aware of the Opposition by reviewing the Court's docket online. Plaintiffs' violation of §...
2019.12.3 Motion to Strike 385
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.3
Excerpt: ...n in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) In ruling on a motion to strike under this section, the co...
2019.12.2 Demurrer 123
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.12.2
Excerpt: ...ry duties.” According to Defendant, “The gravamen of NAS's cause of action is BAES's alleged violation of the Liquor License Statutes.” MPA, p.11. As a result, Defendant contends Plaintiff's claim is based “upon a liability created by statute,” and the applicable statute of limitations is three years pursuant to CCP § 338. Plaintiff does not dispute that the question of which statute of limitations applies is determined by looking to t...
2019.11.26 Motion for Attorney's Fees 047
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.26
Excerpt: ...8.50. Per Code Civ. Proc. § 1033.5(a)(10)(A), fees are recoverable as an element of costs where authorized by contract. The Settlement Agreement at issue here includes a fee provision. See 10‐8‐19 Salassi Decl., Ex. A, § 7.12. The claimed fees appear to be sufficiently documented/supported and reasonable. See 10‐8‐19 Decl. of Hannah Salassi and Ex. D‐G. Defendants do not challenge the amount of claimed fees (they do not challenge the ...
2019.11.26 Demurrer 372
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.26
Excerpt: ...N should not be part of this lawsuit. Defendants CHANG and CHEN did not enter into any contracts with Plaintiff CAVESTONE, did not make any representations to Plaintiff CAVESTONE that induced justifiable reliance, and did not benefit individually from Plaintiff CAVESTONE.” Reply., p.1‐2. Plaintiff, however, has alleged an alter‐ego theory of liability. According to Plaintiff's complaint, “Defendants, and each of them, acted in concert wit...
2019.11.22 Application for Right to Attach Order, for Issuance of Writ of Attachment 221
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.22
Excerpt: ...‐115, which contains all the necessary advisements pursuant to Section 484.050. Although use of the form is optional, Plaintiff's notice includes none of the required information. Second, and more significantly, Plaintiff's complaint alleges breach of contract by Defendant Ye. Plaintiff, however, seeks to attach property owned by Defendant Chen and the Chenye Irrevocable Gift Trust. Plaintiff alleges the property was fraudulently transferred to...
2019.11.22 Motion to Quash 767
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.22
Excerpt: ... California. Further, since Blue Bird has no contacts with the state, the Plaintiff has not shown that his claim arises out of or is related to such contacts. (Burger King Corp. v. Rudzewicz (1985) 471 US 462, 477‐78.) The emails attached to Plaintiff's opposing declaration are not authenticated. However, even if the emails were admitted into evidence, they do not show that Blue Bird had purposeful contacts with California. A plaintiff is gener...
2019.11.22 Petition to Compel Arbitration and Stay Proceedings 143
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.22
Excerpt: ...d therefore Plaintiff and South Bay Colma LLC are ordered to arbitrate the claims asserted against South Bay Colma LLC in Plaintiff's Complaint. Plaintiff raised a number of arguments as to why the arbitration agreement is unenforceable. First, Plaintiff claims that the arbitration agreement is unconscionable. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2...
2019.11.21 Motion to Stay 913
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.21
Excerpt: ...ircuit Court (Waukesha County), which by all appearances involves substantially the same subject matter. Both Complaints seek a judicial declaration regarding the validity/enforceability of the parties' Consulting Agreement. As the moving party here, Matrix has the burden of proving the parties' dispute would be more appropriately tried elsewhere (in Wisconsin). Plaintiff Time Traveller's choice of forum will not be disturbed unless the Court is ...
2019.11.13 Motion to Compel Further Responses 454
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.13
Excerpt: ...ttached to the Request for Production” is deficient. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) Plaintiff shall supplement its response to set forth specific responsive facts. Interrogatories 112.2 through 112.5. A response that merely points to another discovery response is deficient. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) Further, as set forth above, the response to Interrogatory 112.1 (to which this response...
2019.11.12 Petition to Compel Arbitration and Stay Proceedings 519
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.12
Excerpt: ...ation Agreement. The present proceedings are hereby STAYED pending completion of the arbitration. Defendant Dick's has established the existence of an arbitration agreement, and there is no basis to deny enforcement of the Agreement under CCP §1281.2. Plaintiff does not dispute that he signed a binding Arbitration Agreement with Defendant Dick's Sporting Goods or that the claims against Dick's are within the scope of the Agreement. Rather, Plain...
2019.11.8 Motion for Judgment on the Pleadings 712
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.8
Excerpt: ...r Dismissal on Judicial Council Form CIV‐110, which purports to dismiss the “Entire action of all parties and all causes of action.” The Dismissal was entered that same date, as requested. This Dismissal has caused confusion, however, since only Plaintiff Min Xie signed it. In general, the filing of a dismissal has immediate effect, rendering subsequent proceedings void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d ...
2019.11.7 Motion to File Settlement Agreement Under Seal 255
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.7
Excerpt: ...on to approve dismissal of the PAGA claim includes a supporting declaration of Plaintiff's counsel, Jeffrey Curtiss, which refers to the Settlement Agreement, but does not include a redacted version of the document as an exhibit. The present motion to seal includes a supporting declaration of Mr. Curtiss, which states only that the Settlement Agreement will be lodged “as Exhibit A to this Declaration.” The Exhibit A is a blank document. Since...
2019.11.7 Motion to Quash Service of Summons and Complaint 192
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.7
Excerpt: ...he property at 74 New Montgomery is the individual Defendants' “usual mailing address” or “usual place of abode” pursuant to CCP § 415.20. Plaintiff relies on her own declaration, which states that the property “has also been used as [Mr. Saito's] personal residence and corporate office” and that “Mr. Okada has been working and residing at PROPERTY while acting as Saito's business associate in State of California.” Smith Decl., �...
2019.11.5 Motion for Summary Judgment 987
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.5
Excerpt: ...anted as to the first cause of action. It is undisputed that, at the time of the 2015 merger, Plaintiff RAI held no shares of H2 Wellbeing Oy. (UMF 8.) Plaintiff argues that “H2H never issued agreed upon shares to RAI, but agreed in writing to issue such shares in the 2011 Agreement and in its modifications” (Opp. to UMF 8) and that “H2H provided assurances that the matter of unissued shares would be addressed.” (Decl. of Rapakko para. 10...
2019.11.5 Demurrers 718
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.5
Excerpt: ... TO AMEND as to all asserted claims. Code Civ. Proc. § 430.10(e). The Court assumes the 10‐23‐19 Opposition brief was filed on behalf of Ely and Sonia Tangonan, despite its reference to “Cross‐Complainant Mary Pablo,” since no such person is a party to the case. The Court notes that except for a couple references to the res judicata defense, the Opposition does not specifically address any of the asserted claims, nor Barrett Daffin's a...
2019.11.5 Demurrer 718
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.5
Excerpt: ... 10‐23‐19 Opposition brief was filed on behalf of Ely and Sonia Tangonan, despite its reference to “Cross‐Complainant Mary Pablo,” since no such person is a party to the case. Per the Proof of Service, the Opposition brief was not served on Wells Fargo, the demurring party. For this reason, and because the Opposition does not specifically address the asserted causes of action or any of Wells Fargo's arguments (it merely recites general ...
2019.11.4 Motion to Set Aside and Vacate Default Judgment, Enter Another and Different Judgment 883
Location: San Mateo
Judge: Dubois, Richard H
Hearing Date: 2019.11.4
Excerpt: ... Vacate Judgment under C.C.P. section 473(b) is untimely. Defendant seeks relief only under CCP section 473(b) on the ground that default judgment was taken in error against Defendant due to Defendant's mistake, inadvertence, surprise, or excusable neglect. Since judgment was entered in 2009, the motion is untimely under this statute. A motion seeking relief under CCP section 473(b) must be filed within 6 months after entry of default. (See Weil ...
2019.11.1 Motion to Enforce Settlement 203
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.1
Excerpt: ...aning of the settlement terms agreed to on the record on June 28, 2019. The court should reject the County's proposed Paragraph 17 as an improper attempt to effectively convert the “no professional publicity” term the parties agreed to into a “confidentiality” term that was neither bargained for nor agreed to. The court should instead construe the agreement to “no professional publicity” to prohibit plaintiff and her counsel from util...
2019.11.1 Motion to Compel Compliance with Agreement to Produce Docs 797
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.11.1
Excerpt: ...o Compel Plaintiff Triple Net Companies, LLC (“Plaintiff”) to Comply with Agreement to Produce Documents, is ruled on as follows: (1) Defendants originally sought to Compel Plaintiff's Compliance with the Agreement to Produce Documents in response to KComm's Request for Production of Documents, Set One. Specifically, Defendants' Motion sought compliance with Request nos. 1, 2, 7, 8, 15‐17, 19‐23, 25‐30, 32‐43, 49 and 54. The court con...
2019.10.31 Motion for Summary Judgment 975
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.31
Excerpt: ...e as to any material fact and 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 of action cannot be established, or that there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). Once the defendant has met that burden, the burden shifts to plai...
2019.10.29 Demurrer 337
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.29
Excerpt: ...t's duty of loyalty, which if proven would be a fiduciary breach. This claim would be subject to a 4‐ year statute of limitations. Plaintiff knew of the dual agency in October 2015 (Moving P&A at 16; FAC para. 58), which is less than four years before the Complaint filed. Since at least one alleged claim is not time‐barred, the demurrer fails to dispose of the causes of action. 2. Second, Third and Fourth Causes of Action. Demurrer is SUSTAIN...
2019.10.28 Motion to Admit Evidence of Plea of Nolo Contendere to a Felony 201
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.28
Excerpt: ... motion earlier. However, under Rule 2.21, any response to an in limine motion may be filed as late as the first appearance in the Department of the Presiding Judge “for trial assignment.” Rule 2.21 implies that in limine motions are brought to the trial judge, not the Law & Motion Department. Plaintiff's argument that an early ruling would eliminate the need of conducting discovery (Reply at 2:26‐28) lacks merit. A plea of nolo contendre �...
2019.10.28 Motion to Compel Responses, Request for Monetary Sanctions 007
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.28
Excerpt: ...Interrogatory No. 12.1 (Set One). Although the motion is not captioned as a motion to compel a further response per Code Civ. Proc. § 2030.300, that is the motion's clear intent, and both parties treat the motion as such, and thus the Court deems the motion as seeking to compel a further response to Plaintiff's Form Interrogatory No. 12.1. The motion is GRANTED. The LLC members' names and contact information is discoverable A civil litigant's ri...
2019.10.25 Motion for Summary Judgment 985
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.25
Excerpt: ...hey repeatedly refer to the moving Defendants collectively, despite the fact that Defendants are alleged to have different roles in causing the incident in question. Any differences in the analysis with respect to each Defendant is noted below. Gross Negligence The moving Defendants contend, first, that Plaintiff's causes of action for gross negligence must fail “as there is insufficient evidence as a matter of law to establish any triable issu...
2019.10.25 Motion to Compel Further Responses 501
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.25
Excerpt: ...on. If Plaintiff does not comply, then the Court will strike the motion instead. (Code of Civ. Proc. Sect. 128.7 (“unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party”).) If Plaintiff cures the omission, then the Court will rule as set forth below. 2. Regarding Defendant's citation to People v. Investco Mgmt. & Dev. the Court reminds Defendants' c...
2019.10.23 Application for Right to Attach Order, for Issuance of Writ of Attachment 598
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.23
Excerpt: ...) the claim upon which the attachment is based is one upon which an attachment may be issued, (2) Petitioner has established the probable validity of her claim (see Code Civ. Proc. § 481.190, “more probable than not…”), (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, and (4) the amount to be secured is greater than zero. Code Civ. Proc. § 483.090(a). Based on the alle...
2019.10.23 Motion to Quash Service of Summons and Complaint 541
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.23
Excerpt: ... CONTINUED to January 17, 2020 at 9 a.m. in the Law & Motion Department to allow Plaintiff time to conduct jurisdictional discovery. Defendants' alternative Motion to Dismiss on grounds of inconvenient forum (forum non conveniens) is DENIED, for the reasons stated below. Personal jurisdiction is determined by evidence, not allegations Without belaboring the issue, the Court notes that when a Defendant challenges the Court's personal jurisdiction ...
2019.10.22 Motion for Sanctions 107
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.22
Excerpt: ...tive ruling, Plaintiffs served a “partial joint response” to Defendants' requests for production. In conjunction with that response, Plaintiffs produced approximately 600 pages of documents. Subsequent to the filing of this motion, Plaintiffs produced approximately 1900 electronic files. In this motion, Defendants emphasize that Plaintiff's production was deficient. According to Defendants, “[Plaintiffs] have disobeyed [the court's July 23]...
2019.10.21 Motion to Strike or Tax Costs 540
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.21
Excerpt: ...b)‐16(d) is GRANTED. These costs are barred by the oral settlement agreement between the parties entered into on April 24, 2018. The transcript of the April 24, 2018 hearing shows that Defendant's counsel, Matthew James, stated on the record: …And just so I'm absolutely in an abundance of caution, that the parties are agreeing to incur their own attorney's fees and costs relating to this litigation except as provided for by Mr. Macias [Plaint...
2019.10.18 Motion to Stay or Dismiss 683
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.18
Excerpt: ...nt. The parties to this case are all currently involved in another pending case—an earlier‐filed action in the United States District Court for the Southern District of Indiana, captioned Genesys Telecommunications Laboratories, Inc. v. Talkdesk, Inc. et. al., Case No. 1:19‐CV‐00695‐TWPDML. In the Indiana case, parties Talkdesk, Morales, Strahan, Hertel, and Manno, who are all Plaintiffs in this case and Defendants in the Indiana case, ...
2019.10.18 Motion to Compel Arbitration 683
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.18
Excerpt: ...aining broadly‐worded arbitration clauses. 8‐16‐19 Maley Decl., Ex. 2 at § 11, Ex. 6. Morales does not appear to dispute that the arbitration clause in one or both of the agreements would apply to her asserted claims against Genesys. However, she contends the agreements are unconscionable and/or voidable under Labor Code § 925, and thus should not be enforced. Because unconscionability is a contract defense, the party asserting the defens...
2019.10.18 Motion for Summary Judgment, Adjudication 711
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.18
Excerpt: ... no merit. CCP §437c(p)(2). The complaint asserts causes of action for products' liability based on defective design, defective manufacturing and failure to warn, negligence based on design and manufacturing defects and failure to warn, loss of consortium and negligent infliction of emotional distress. The undisputed material facts and supporting evidence establish the following: Defendant was not involved with the installation of its product. U...
2019.10.15 Motion to Strike Punitive Damages 752
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.15
Excerpt: ...aint (SAC) is GRANTED. Code Civ. Proc. §§ 435‐437; Civ. Code § 3294. As a general rule, punitive damages are disfavored and are awarded “with the greatest caution” and only in the “clearest of cases.” Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347. Mere negligence, even gross negligence, is not sufficient. Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894. The law requires that a plaintiff seeking punitive damages prove...
2019.10.15 Motion for Summary Judgment 361
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.15
Excerpt: .... I. Issue One – First Cause of Action (Declaratory Relief) The Stadler‐Freeman deed reserved a right of way that is 50‐feet wide, designated for “road purposes and for public utilities.” The reservation does not indicate any specific dimensions for road purposes or for utilities. Certain defendants received easements over the 50‐foot right of way, but Defendants' deeds do not specify any width of their respective easements. Therefore...
2019.10.11 Motion to Compel Further Responses 724
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.11
Excerpt: ...other state agencies. Those agencies are not a party to this action. As a result, Defendants must seek the documents through a third‐party subpoena pursuant to People ex rel. Lockyer v. Superior Court, 122 Cal. App. 4th 1060, 1078–80 (2004). Defendants have provided no argument or discussion relating to Lockyer. Defendants contend that, in accordance with CCP § 2031.230, the People are required to indicate whether a diligent inquiry has been...
2019.10.9 Motion to Lift Stay 296
Location: San Mateo
Judge: Greenberg, Susan
Hearing Date: 2019.10.9
Excerpt: ...tani et. al.'s express request. See 8‐16‐19 Minute Order. Dattani et. al. has repeatedly represented that this civil case should follow the criminal case. See 8‐22‐19 Wood Decl., ¶6 (“In Dec. 26, 2018 Defendants moved to continue trial, in accord with Defendants understanding that everyone agrees the criminal matter must proceed before the civil matters.”). The criminal case has not yet resolved. Further, Dattani et. al. has not iden...
2019.10.8 Motion for Summary Adjudication 393
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.8
Excerpt: ...ailure to Pay Wages (Bonus) As noted by Plaintiff, the elements of a cause of action for failure to pay wages are (1) that plaintiff performed work for defendant; (2) that defendant owes plaintiff wages under the terms of the employment; and (3) the amount of unpaid wages. CACI 2700. According to Plaintiff, he has established each of these elements as a matter of law. Plaintiff contends he was entitled to wages pursuant to the terms of the Novemb...
2019.10.8 Application for Right to Attach Order and Prejudgment Writ of Attachment 182
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.8
Excerpt: ...t is GRANTED‐IN‐PART, in the amount of $50,979, which appears to be a conservative estimate of the amount owed. Plaintiff's Application satisfies the requirements of §483.010(a), namely, (1) the claim upon which the attachment is based is one upon which an attachment may be issued, (2) Plaintiff has established the probable validity of its claim (see Code of Civ. Proc. § 481.190, “more probable than not…”), (3) the attachment is not s...
2019.10.8 Motion for Recovery of Attorney Fees 712
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.8
Excerpt: ...hose acts do not constitute “binding the company” or “executing an instrument.” The motion does not demonstrate that Plaintiffs acted in contravention of paragraph 7.10. The motion lacks merit also because Paragraph 7.10 does not entitle a Member to attorney's fees in the present context. The purported “action by the Member” is the signing and filing of the Complaint. However, there is no claim based on that “action by the Member.�...
2019.10.7 Motion for Summary Judgment 901
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.7
Excerpt: ...ct and 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 of action cannot be established, or that there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). Once the defendant has met that burden, the burden shifts to plaintiff to show that a tr...
2019.10.7 Motion for Leave to File Amended Complaint 681
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.7
Excerpt: ...riginally named as a defendant in the Complaint, was dismissed from this action without prejudice after he brought a Motion to Quash based on lack of personal jurisdiction. (See court's August 21, 2018 order.) Plaintiff then sought leave to amend to file a proposed First Amended Complaint to add allegations to support that Grecu is the alter ego of Defendant Interstates Vanlines, LLC (“IVL”). Plaintiff's motion was denied without prejudice. (...
2019.10.4 Motion for Summary Judgment 018
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.4
Excerpt: ...Defendant expressly agreed in writing that he would pay the County for the treatment and services in accordance with the regular rates and terms of the Medical Center. UMF #3, 4. The County performed its obligations pursuant to the written agreements. UMF # 2. Defendant failed to pay for the medical treatment and services rendered to him, and the County has been damaged in the amount of 22,041.06. UMF # 5‐11. With respect to the claim for servi...
2019.10.3 Motion for Attorney Fees as Sanctions 294
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.3
Excerpt: ...Civ. Proc. § 1008(b). On 10‐10‐18, Plaintiff dismissed its entire case against BJ Interstate. Thereafter, on 4‐5‐ 19, BJ Interstate moved for sanctions against Plaintiff under Code Civ. Proc. § 128.5, asserting the same arguments it now rehashes here. BJ Interstate argued in the prior motion, inter alia, that Plaintiff knew or should have known from the day he filed this case, and certainly from the time Plaintiff filed his First Amende...
2019.10.3 Motion to Compel Verified Responses 452
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.3
Excerpt: ...Defendants contend the motion is moot because they provided signed verifications on September 3rd and 4th. Defendants, however, cite no authority in support of their contention that the motion is moot. There is, however, authority to the contrary. In Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants, 148 Cal. App. 4th 390, 408 (2007), the court concluded that untimely service of discovery responses does not deprive the trial cour...
2019.10.3 Motion to Seal Exhibits 987
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.3
Excerpt: ...y finds this matter involves confidential business plans, valuation and financing strategies, negotiation and collaboration tactics, internal market research, and private corporate structure and financial information. The overriding interest supports sealing the record. The Court expressly finds there is an overriding interest in protecting Defendant's information from public disclosure. A substantial probability exists that the overriding intere...
2019.10.2 Motion to Quash Service of Summons and Complaint 871
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.2
Excerpt: ...r, have not filed an opposition to Defendant's motion. Accordingly, based on Defendant's moving papers, the motion is granted. If Plaintiffs' papers in support of their request to continue the hearing is to be believed, Defendant has sales representatives based in California, and sells more of the subject airplane to buyers in California than to any other state. These facts, however, were not included in Plaintiffs' declaration in support of the ...
2019.10.2 Motion for Judgment on the Pleadings 427
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.10.2
Excerpt: ...nt Christian Giguiere's (“Defendant”) motion to set aside sister state judgment is UNOPPOSED and GRANTED. On March 28, 2019, Judgment was entered against Defendant in the Supreme Court of the State of New York, County of Kings, as Defendant had executed an Affidavit of Confession of Judgment. The Confession of Judgment was signed by one person, Christian Robert Giguiere, on behalf of “Christian Robert Giguiere” and “Christian Giguiere.�...
2019.2.28 Motion for Summary Adjudication 285
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.28
Excerpt: ...18, 19 and 20. As to the Declaration of Gilg, the Court overrules Chantler's Objection 1 and sustains Objection 2. The Court exercises its discretion to not rule on Yeganeh's Objections since none of the matter to which Yeganeh objects was necessary or material to the Court's analysis of the present motion. (See Code of Civ. Proc. Sect. 437c, subd. (q).) B. Issue 1 (Sixth Cause of Action) Plaintiff Chantler's claim for action on a judgment is tim...
2019.2.28 Motion to Strike 633
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.28
Excerpt: ...olves the objections to be raised in the motion. §435.5(a)(3) requires the moving party to file and serve with the motion a declaration stating either the means by which the moving party met and conferred and that they did not reach an agreement or that the party who filed the pleading that is the subject of the motion failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. The declaration of Gopal ...
2019.2.27 Motion to Set Aside Default Dismissal 879
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.27
Excerpt: ...to bring the instant motion. Moreover, the motion is untimely pursuant to Code Civ. Proc. § 473(b), and the Court has no jurisdiction to consider it. Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36. Even if Mr. Thompson had standing and the motion was timely, it would be denied for lack of merit. Mr. Thompson provides no explanation as to what “mistake, inadvertence, surprise or excusable neglect” resulted in entry of the Court's July...
2019.2.27 Motion to Change Venue 909
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.27
Excerpt: ...multiple counties, not just where the defendant(s) reside. In breach of contract cases, venue is proper, inter alia, where the contract work is to be performed. Code Civ. Proc. § 395(a). On a motion to change venue, the moving party bears the burden of establishing the facts necessary to justify a change of venue. Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666. The Complaint here alleges the contract was formed in, and perfo...
2019.2.27 Motion to Quash Civil Subpoena or for Protective Order 019
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.27
Excerpt: ...ive Order, filed 2‐13‐19, which includes a request for attorney's fees, is GRANTED‐IN‐PART and DENIEDIN‐PART, as set forth below. Plaintiff has not filed any “Opposition” per se, but on 2‐19‐19, filed and served (by regular mail) a document stating Plaintiff “Objects” to the DA's Motion to Quash. Even if this document had been formatted and entitled properly, Plaintiff served it by regular mail, which violates Code Civ. Proc...
2019.2.27 Motion to Compel Further Responses 974
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.27
Excerpt: ...nterrogatories (Set One) within 14 days of this order. Defendant's request for sanctions is DENIED. Allstate's opposition does not respond to the arguments presented in the moving papers, and it is not supported by a declaration signed under penalty of perjury. Allstate's response is also deficient because the attached exhibits are not what they are purported to be in its memorandum in opposition. In any case, Defendant has demonstrated it is ent...
2019.2.26 Motion to Strike 282
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.26
Excerpt: ...Plaintiff leave to amend one cause of action. Plaintiff then filed a TAC five days after the statutory deadline for filing an amended pleading had expired. Under the circumstances, including the absence of any compelling showing of prejudice, the Court will exercise its discretion and accept Plaintiff's late‐filed TAC. § 473(a)(1). To the extent the County contends the Court lacks discretion to do so, the Court disagrees. Harlan v. Department ...
2019.2.26 Motion to Vacate 233
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.26
Excerpt: ...t retained at the time the default was entered cannot be the proximate cause of the entry of default under 473(b).” In that case, the defendants' counsel was not contacted until after default was entered on June 4. Although counsel was retained in August, counsel failed to move to set aside the default before judgment was entered in September. The court concluded that counsel's conduct was not the proximate cause of entry of default because he ...
2019.2.26 Motion to File Amended Complaint 701
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.26
Excerpt: ...and Bonnie Rodemeyer (“Plaintiffs”) to File Second Amended Complaint is GRANTED IN PART and DENIED IN PART. Defendants Professional Computing Solutions, Inc. dba Silicon Segway and Jim Heldberg (“Defendants”) ask that this motion be denied for failure to comply with California Rules of Court Rule 3.1324(a). While Plaintiffs did not state what allegations are proposed to be deleted and amended, by page, paragraph and line number, Plaintiff...
2019.2.25 Motion to Compel Further Responses, for Monetary Sanctions 199
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.25
Excerpt: ...de full and complete responses within 14 days of this order. To the extent Newsweek has already provided the information sought, it may respond accordingly. Structure asserts that Newsweek has waived objections for failure to respond to the discovery requests by October 2. The court agrees. With respect to this issue, however, the court notes that Structure refused to grant any extension for responding to its discovery requests. Further, during t...
2019.2.22 Motion for Charging Order of Interests in LLCs 927
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.22
Excerpt: ...d on “the judgment debtor” and “all members” of the LLC in which the judgment debtor purportedly owns an interest. (Code of Civ. Proc. § 708.320(a).) The Proof of Service does not show that this motion was served on Judgment Debtor METAMINING, INC., or on any members of Spiro Mining, LLC, or Coal Creek, LLC. It shows service on the LLCs, but the statute requires service on the LLCs' “members.” This defect in service was pointed out i...
2019.2.22 Motion for Summary Adjudication 285
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.22
Excerpt: ...laintiff's objection to Defendant's purported attempt to file a moving Memorandum of Points and Authorities of excessive length by manipulating typeface size and line spacing. (Opp. P&A at 1 and n.1). The Court also notes that Plaintiff's extensive use of footnotes brings her Opposing brief to a word‐count nearly identical to that of Defendant. The motion for summary adjudication is DENIED as to Issues 1, 2, and 3. A. Issue 1 – Damages 1. The...
2019.2.22 Motion to Set Aside and Vacate Default Judgment, Enter Another Judgment 251
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.22
Excerpt: ...x months. Second, defendant has not provided a proposed responsive pleading as required by the statute. Finally, defendant has not offered evidence to support a finding that the default was entered as a result of her mistake, surprise, inadvertence of excusable neglect. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling ...
2019.2.21 Motion for Summary Judgment, Adjudication 647
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.21
Excerpt: ...for breach of contract and negligence cannot be established, and Plaintiffs fail to meet their burden of showing the existence of a triable issue of material fact. Code Civ. Proc. § 437c(p)(2); Calvillo‐Silva v. Home Grocery (1998) 19 Cal.4th 714, 735. Moving and opposing papers in a summary judgment motion must be supported by admissible evidence consisting of “affidavits, declarations, admissions, answers to interrogatories, depositions, a...
2019.2.19 Motion for Summary Adjudication 076
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.19
Excerpt: ...led to comply with CRC 3.1350(b), which requires that “[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Defendants have not repeated the noticed issues verbatim in their separate statement. Further, Defendants have noticed and briefed issues, relating to Plaintiffs' c...
2019.2.19 Petition to Confirm Arbitration Award 876
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.19
Excerpt: ...confirming that Petitioner may install and use a second hoist at the south side location originally approved by the Harbor Master on March 28, 2014, this issue is DENIED AS MOOT. Petitioner acknowledges in its moving papers that at their October 17, 2018 Board meeting, “Respondents voted on a resolution authorizing Three Captains to install its second hoist and directing their General Manager to take all actions necessary to give effect to the ...
2019.2.19 Demurrer 244
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.19
Excerpt: ...ion in Plaintiff's complaint are OVERRULED. Plaintiff's complaint properly asserts accounting as an alternative theory to his cause of action for breach of contract. California recognizes a cause of action for constructive trust. Michaelian v. State Comp. Ins. Fund, 50 Cal.App.4th 1093, 1114. Plaintiff is granted leave to amend the complaint within ten days of this order. If the tentative ruling is uncontested, it shall become the order of the Co...
2019.2.15 Motion to Fix Amount of Attorney's Fees 758
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.15
Excerpt: ...hus should not be allowed to recover attorney's fees for their time.” Opposition, p.4. Cross‐Defendant NAS, however, is not an attorney and did not represent itself. Cross‐complainant provides no authority supporting apportionment of fees between attorney and non‐attorney parties when those parties jointly file and prevail on an antiSLAPP motion to strike. See Ramona Unified Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510, 525, 37 Cal. Rptr....
2019.2.15 Motion to Set Aside and Vacate Judgment 142
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.15
Excerpt: ... a default or default judgment entered against him or her as a result of his or her mistake, inadvertence, surprise or excusable neglect. In this case plaintiff is seeking relief from a default judgment entered in its favor, not any judgment or order entered against it. Furthermore, there is no showing that the default was the result of mistake, inadvertence, surprise of excusable neglect. The declaration of Nichol Alan De Guzman merely states th...
2019.2.15 Demurrer 424
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.15
Excerpt: ... resolve the objections to be raised in the demurrer. The declaration of Candace Shirley states only that a letter was sent to plaintiff's counsel. Consequently, the hearing on the demurrer is CONTINUED to March 27, 2019 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer. The demurring party is required to file, no later than 7 days prior to the new hearing date, a code‐compliant declaration stating either (1)...
2019.2.14 Motion for Summary Judgment, Adjudication 841
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.14
Excerpt: ...iled to provide the court with evidence of an executed or otherwise binding agreement between the parties. Instead, Plaintiff has provided a one‐page “Membership Application and Agreement” that appears to be an application for an account with Plaintiff. Notably, the application makes no reference to a line of credit. Plaintiff also relies on (1) an unsigned “Open End Loan Plan Agreement and Truth in Lending Disclosure,” and (2) monthly ...
2019.2.13 Motion for Summary Judgment, Adjudication 903
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.13
Excerpt: ...(See Plaintiff's Statement of Undisputed Facts nos. 1, 3, 4, 6‐8, 10‐13, 15‐17.) Judgment shall be entered in favor of Plaintiff and against Defendant Arleen Gonzales for the principal amount of $32,925.50. Plaintiff also requests court costs of $1,033.00 as part of this motion. Plaintiff filed a Memorandum of Costs on November 1, 2018 at the same time this motion was filed. However, a prevailing party who claims costs must file and serve a...
2019.2.13 Motion to Dismiss or Stay Proceedings, to Compel Arbitration 565
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.13
Excerpt: ...ing resolution of the arbitration is GRANTED. Code Civ. Proc. § 1281.2 et. seq. California law favors the enforceability of arbitration agreements. See California Arbitration Act (“CAA”), codified by Code Civ. Proc. Sect. 1281, et seq.; Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83, 97 (2000). Here, Plaintiff does not dispute that she entered into a binding and enforceable arbitration agreement. See 12‐19‐18 Cap...
2019.2.11 Motion to Enforce Settlement Agreement 281
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.11
Excerpt: ...le, or (3) identify the extent of the relief requested; i.e. what specific performance is sought by court order. In any case, however, the court finds that the contractual provision at issue is inscrutable. The disputed language provides: The valuation shall not include any discounts including discounts for lack of control or lack of marketability of the interest in the LLC, though the appraiser may consider discounts if necessary to be considere...
2019.2.11 Demurrer 657
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.11
Excerpt: ...nd Bayview Loan Servicing LLC (“Bayview”) (also collectively “Defendants”) to the Second Amended Complaint (“SAC”) of Plaintiff Mele M. Uperesa (“Plaintiff”) is ruled on as follows: (1) Demurrer to the Second Cause of Action for Cancellation of Instruments is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. This claim is alleged against MERS and BONYM. Plaintiff seeks to cancel wr...
2019.2.11 Motion for Leave to File Amended Complaint 789
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.11
Excerpt: ...920, 939. The improperly‐served Opposition (see Code Civ. Proc. § 1005(b), requiring service by overnight delivery), does not dispute that joining the proposed new defendants is proper, and does not identify any meaningful prejudice or other basis for disallowing the proposed TAC. Defendant questions the viability of the proposed new claims for “nuisance per se” and “interference with easement,” and the punitive damages claim against t...
2019.2.11 Motion to Compel Further Responses 203
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.11
Excerpt: ...o each request for production of documents with (1) a statement that the party will comply; (2) a statement that the party lacks the ability to comply; or (3) an objection. Code Civ. Proc. § 2031.210.  Where a statement of compliance is made, the party must state whether it will comply with a demand in whole or in part, and that all documents or things in the demanded category that are in the possession, custody or control of the party will b...
2019.2.7 Motion to Seal Exhibit, for Summary Judgment, Adjudication 904
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.7
Excerpt: ...otion for Summary Judgment/Adjudication is GRANTED pursuant to California Rules of Court Rule 2.550(d). Based on the Motion, the document is confidential pursuant to the terms of the parties' discovery stipulation; although it was submitted in support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment/Adjudication, it had limited bearing on the legal issues necessary to adjudication of the motion; and based on those facts, the c...
2019.2.5 Demurrer 944
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.5
Excerpt: ...om its making. (Civ. Code sect. 1624, subd. (a)(1).) However, if it is merely unlikely that it will be so performed, or the period of performance is indefinite, the statute does not apply. (Blaustein v. Burton (1970) 9 Cal. App. 3d 161, 185.) The statute of frauds applies only to contracts that “cannot” be performed within one year. (Hollywood Motion Picture Equip. Co. v. Furer (1940) 16 Cal. 2d 184, 187.) Even though a promise may not by its...
2019.2.5 Motion to Set Aside Default, Judgment, to Quash Service of Summons 199
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.5
Excerpt: ...NIED. Defendant brings this motion under Code of Civil Procedure section 473.5, or alternatively, under Code of Civil Procedure section 473(d). Defendant seeks to set aside the default and default judgment for possession entered on March 7, 2017, and the default judgment for money entered on May 8, 2018. Plaintiff argues that the motion is untimely because Defendant failed to bring it within 180 days after service on Defendant of written notice t...
2019.2.4 Demurrer 321
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.4
Excerpt: ... a married spouse of the injured plaintiff or to his or her registered domestic partner. (CACI 3920; Fam. Code sect. 297.5, subd. (c). Plaintiff's reliance on the Butcher case is unpersuasive; the Supreme Court rejected Butcher for the proposition cited by Plaintiff. (See Elden v. Sheldon (1988) 46 Cal.3d 267, 277, 279‐80.) Plaintiff LOPEZ does not allege that she is the spouse or registered domestic partner of Plaintiff ALFARO. Plaintiff LOPEZ...
2019.2.1 Demurrer 715
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.1
Excerpt: ...��) of Plaintiff Sean Bugayong (“Plaintiff”) is ruled on as follows: Demurrer to the First Cause of Action for Fraud by CalCare is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support this claim. Fraud against a corporation requires pleading facts that allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when i...
2019.2.1 Motion to Strike 715
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.1
Excerpt: ...ded Complaint (“FAC”) of Plaintiff Sean Bugayong (“Plaintiff”) is ruled on as follows: Motion to Strike the Claim for Punitive Damages in paragraph 65 of the FAC is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff agrees to withdraw this claim for punitive damages. Motion to Strike the Prayer for Damages in paragraph 4.a of the FAC is GRANTED WITH LEAVE TO AMEND. For the Fourth Cause of Action, Plaintiff seeks “[d]amages for loss of earnings, ...
2019.2.1 Motion for Summary Judgment, Adjudication 937
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.2.1
Excerpt: ...t is GRANTED. With respect to this cause of action, Masoli alleges that “Cross‐Defendants failed to send Cross‐Complainant a Notice of Intention to Sell Repossessed Vehicle that truthfully and accurately set forth ‘all the conditions precedent' to reinstatement of the Retail Installment Sale Contract in violation of Cal. Civil Code § 2983.2(a)(2).” Cross‐ Complaint, ¶ 69. Masoli, however, does not allege or explain how the notice, w...

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