Excerpt: .... (Opp., at pp. 7:228:5.) A defendant may file a demurrer within 30 days after service of the complaint pursuant to Code of Civil Procedure, section 430.40, subdivision (a). The court has broad discretion to consider a late -filed demurrer where the plaintiff's substan tial rights are not affected, the plaintiff has not taken steps to obtain a default, and the plaintiff has not demonstrated prejudice due to the delay. (Jackson v. Doe (2011) 192...

Excerpt: ... matter to April 23, 2024. At the April 9, 2024 hearing, plaintiff Mary Wang Oskamp, who contests the tentative, appeared and stated that she was not available on April 23. Therefore, the court set the hearing for May 28, 2024 at 2:00 p.m. and the clerk of the cou rt set notice to all parties of the new hearing date. The court will hear argument on the motion on May 28, 2024 at 2:00 p.m. with a Mandarin interpreter present. The Court understands ...

Excerpt: ...breach of contract claim are : (1) the contract, (2) plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach of the contract, and (4) the resulting damage to plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A cross -complainant has met its burden of showing there is no defense to a cause of action if the cross -complainant has proved each element of the cause of action entitling the party...

Excerpt: ... various caus es of action related to alleged abuse by former Deputy Probation Officer John Domeniconi. In this particular case, John JV Doe's allegations arise out of conduct that occurred between 2000 and 2003. (Second Amended Complaint (SAC) ¶33, 41.) By this Moti on, Plaintiff seeks records from the San Mateo County Probation Department related to former Assistant Chief Probation Officer Bonnie Macaskill, who has been employed by the Probati...

Excerpt: ...INED without leave t o amend. Plaintiffs' Complaint alleges that decedent Mrs. Menjivar, the mother of Plaintiffs Salvador and Edgard Menjivar, as well as Defendants Mario and Roberto Menjivar, wrote a will several years prior to her death in which she purported to leave her assets to her four sons equally. Seven years after the will was written, and prior to her death, Defendant Mario Menjivar moved into Mrs. Menjivar's home with her. As relevan...

Excerpt: ...ntiff Elderl y Care Alliance of San Mateo (“the Villa”). (May 10, 2024 Declaration of Tammy Vu (“Vu Decl.”), ¶ 5.) However, the Villa received actual notice sufficient for the Villa to file a timely opposition addressing the merits of the motion. No prejudice appearing therefrom, the Court has considered the motion on its merits. A. Relief from Judgment Pursuant to Code of Civil Procedure § 473, subd. (b) A party may move for relief fr...

Excerpt: ...endant Bai's creditors, including Plaintiff. According to the Complaint, Defendant Lihui Bai fraudulently transferred her interest in real property located in Atherton, California (“the subject property”) to her son, Defendant Yihua Zhu, in order to avoid paying on a judgment entered against her and in favor of Plaintiff in a prior civil action brought by Plaintiff in the People's Republic of China (“PRC”). Defendant Yinhua Zhu now moves ...

Excerpt: ...ection 437c(b)(1) provides that an MSJ “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” Under Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, the party moving for summary judgment has the burden of production to make a prima facie showing that there is no triable issue of any material fact. The burden then shifts to the nonm...

Excerpt: ...or Negligence and Fourth Cause of Action for Violation of Government Code S ection 815.6 based on failure to allege facts sufficient to support these claims. A governmental entity can only be liable in tort based on an authorizing statute; a public entity cannot be held liable for an injury under common law negligence. (Govt. Code Sect. 815, subd. (a); Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 279; Guzman v. County o...

Excerpt: ...tion between or dinary and professional negligence “may be relevant and necessary for purposes of statutory construction and application” (Flowers, supra, at 997). The Court of Appeal for the Sixth District persuasively distinguishes the contexts of summary judgment and demurrer, opining that duplicative pleading should be dealt with at trial or upon summary judgment, rather than at the pleading stage. Blickman Turkus, LP v. MF Downtown Sunny...

Excerpt: ...serts a cause of a ction for negligent entrustment against him, on three grounds: (1) mandatory dismissal for failure to serve the summons within three years of filing, (2) statute of limitations, and (3) discretionary dismissal for delay in service and prosecution. The cour t rules on the demurrer as follows: A. Legal Standard on Demurrer The purpose of a demurrer is to test the legal sufficiency of the facts alleged in the operative complaint ...

Excerpt: ...the hearing. D epartment 4 is located at the Central Courthouse, Courtroom G, 800 North Humboldt St., San Mateo, CA 94401. (See Cal. Rules of Court, Rule 3.1110 [the Notice “must specify” the location of the hearing].) The Motion for Summary Judgment or, in the Altern ative, Summary Adjudication (the Motion”) brought by Defendants Mills Peninsula Emergency Medical Associates, Inc., and Allan Brody, M.D. (“Defendant Brody”) (collectively...

Excerpt: ...al property, Plaintiffs allege that Plaintiff Lyudmyla Grytsayenko was injured after hitting her head on low scaffolding that had been erected as part of the construction. Plaintiff's Complaint alleges causes of action for (1) negligence and (2) premises liability aga inst all Defendants, including Defendant KBI Painting, Inc. (“KBI”). Defendants Core General Contractors, Inc. (“Core”), Midpen Housing Corporation, and Midpen Property Mana...

Excerpt: ...n alleged oral agreement between the parties to transfer title to a house purchased solely in Defendant's name into the parties' names jointly. The operative verified First Amended Complaint (“FAC”) brings causes of action for (1) quiet title; (2) declaratory relief; (3) partition and accounting; (4) fraud; (5) constructive fraud; (6) negligent misrepresentation; (7) breach of fiduciary duty; (8) imposition of a constructive trust; (9) to e...

Excerpt: ... the documents and not to the truth of any matter therein (see Middlebrook- Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038), and DENIED as to nos. 5– 6 as irrelevant. Plaintiffs JW Properties Development, LLC's and 430 Eddy St. Associates, LLC' s Request for Judicial Notice is GRANTED as to items nos. 1 –2, but only as to the existence of the documents and not to the truth of any matter therein (see Middlebrook -A...

Excerpt: ...l. Rules of Court, rule 3.1110(f)(4).) The trial court has discretion under Code of Civil Procedure section 437c to overlook procedural errors in the moving and opposition papers, if the evidence presented warrants it though. (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Lars on (2005) 131 Cal.App.4th 1466, 1478.) The Court exercises its discretion to overlook this defect, but Defendant is cautioned to comply with this rule in the future. BACKGROUN...

Excerpt: ...tion contained a request for judicial notice of three exhibits. To the extent plaintiff requested this court take judicial notice of exhibits 1 -3 with respect to the instant motion for leave to conduct specified discovery, the request is GRANTED, BUT NOT FOR THE TRUTH OF THE MATTERS ASSERTED. (Evid. Code, §§ 452, 453.) On January 16, 2024, plaintiff Hamid Khazaeli in propria persona brought the underlying action arising out of circumstances r...

Excerpt: ...OUT LEAVE TO AMEND w ith respect to the First, Second, Third, and Fifth Causes of Action pursuant to Cal. Code of Civil Procedure Sections 430.10(e), 335.1, 340.5, 340(c). The Demurrer to the Fourth Cause of Action for Fraud is SUSTAINED WITH LEAVE TO AMEND to allege a cause of action for fraud, because leave had not been previously granted to add an additional cause of action. Defendants' Request for Judicial Notice is GRANTED pursuant to Cal. E...

Excerpt: ...r Judicial Notice (RJN) is GRANTED. (Evid. Code Sect. 452(d).) Ferrari N.A.'s dismissal in Case No. 18CIV06808 was without prejudice, and thus does not bar/preclude a subsequent suit against Ferrari, N.A., assuming the statute of limitations has not expired. As Ferrari notes, on 6 -27- 23, in Case No. 18CIV06808 (the “2018 case”), the Court issued an Order dismissing Ferrari N.A. pursuant to Code Civ. Proc. Sect. 583.210(a), which mandates di...

Excerpt: ...��nding that Petitioner was driving with a BAC of 0.08% or higher. Although not contested, for completeness, the Court notes that it also finds the evidence supports reasonable suspicion for the stop and probable cause for the arrest and requiring Petitioner to submit to a BAC test. Second, DSO Medina's decision to suspend Petitioner's CDL was supported by her findings. Third, DSO Medina acted lawfully as a neutral factfinder and not as an adv...

Excerpt: ...) Pursuant To CCP §425.16 (Motion or anti -SLAPP Motion) is GRANTED. Defendant Stiles filed a first anti -SLAPP motion regarding the original Cross -Complaint's claim for abuse of process. Cross -Complainant then filed the FACC, which includes as its Ninth Cause of Action a re vised claim for Abuse of Process. This Court granted the anti -SLAPP motion as to the original Cross -Complaint. However, because Cross -Complainant's opposition to tha...

Excerpt: .... Defendants' o bjection to Plaintiff's Exh. 4 is SUSTAINED in part, in that the text messages contained in the exhibit that discuss offers to pay may not be used to prove liability for breach of contract, though they are admissible to show that the promissory note has no t been paid. Plaintiff objects to the Declaration of Bogdan Ryczkowski as unsupported by proper foundation and substantially hearsay. The foundation and hearsay objections are O...

Excerpt: ...osing party. (Hi ggins v. Del Faro (1981) 123 Cal.App.3d 558, 564- 565.) Accordingly, the Motion is only granted with respect to adding parties. The remainder of the Motion is denied for failing to comply with CRC Rule 3.1324. Defendants Cory L. Cooper and Dwell Realtors, Inc.'s (“Defendants”) position regarding the Motion being untimely is obviously well taken. Nevertheless, Defendants have been able to file a substantive response and have ...

Excerpt: ...les of Court, rule 3.1110 [the Notice “must specify” the location of the hearing].) Defendant Real Time's Motion for Attorneys' Fees is GRANTED. On December 18, 2023, the Court granted summary judgment in favor of Real Time and against plaintiff. (Declara tion of Samuel Trakhtenbroit [Trakhtenbroit Decl.], iso Mot. for Attorneys' Fees, ¶ 12; Order Granting Defendants' Motion for Summary Judgment, or Alternatively, Summary Adjudication, file...

Excerpt: ...n McSharry, et al., 23-CIV -05140, this Court granted a nearly identical anti -SLAPP motion brought by defendant Justin McSharry against plaintiff's nearly identical complaint. Defendants Shah and McSharry are represented by the same counsel. On March 20, 2024, Shah file d an unopposed motion for attorneys' fees. Shah represents that if the Court grants this motion, Mr. McSharry will not seek attorneys' fees. Pursuant to Code of Civil Procedure,...