Excerpt: ... demonstrated that plaintiff has refused to arbitrate (see Tahim Decl. ¶¶ 2-3, Exh. 1). Each independent contractor agreement contains a broad arbitration clause requiring binding arbitration of “any dispute [that] arises under th[e] agreement,” and further providing that the parties are “specifically ... agreeing to waive their right to a jury trial to resolve any disputes in this matter.” (Malkin Decl. ¶ 2, Exh. A, italics added; App...

Excerpt: ...s” Bobbi Franke, Elena Frenkel, Steve DiBenedetto, and “director” Suzanne Krivda aka Suzanne King-Smith, plaintiffs cannot produce clear and convincing evidence that these “vice presidents” or “directors” had the requisite authority over corporate policy regarding safety issues associated with failing to install flame arrestors. (Moving Party Separate Statement, Fact Nos. 1, 2, 3, 36, 38, 39, 40; Gelfo v. Lockheed Martin Corp(2006) ...

Excerpt: ...as initiated between the parties without the intervention of the court. Arbitrator Hart has been appointed and the arbitration is under way. Evidence has been taken and briefing is scheduled. On 5/22/18, shortly before his termination, Chatansombute filed a superior court action (2018-00994376) seeking a writ of mandate and damages for violation of the Peace Officer's Bill of Rights (POBRA.) That matter is also currently pending. Chatansombute re...

Excerpt: ...rvices provided and billed to plaintiff Leslie A. Andrews (Andrews) personally as well as her business entities. (SAC at ¶¶ 25, 27, 36, 47, 62-76.) These issues fail to address defendants' alleged misconduct directed at Andrews personally. Summary adjudication of only a portion of a cause of action is not permitted. (See Code Civ. Proc., § 437c, subd. (f)(1).) As for defendants' reliance on Lilienthal & Fowler v Superior Court (1993) 12 Cal.Ap...

Excerpt: ...the FAC fails to allege the existence of an enforceable contract between plaintiff and CitiMortgage, plaintiff's performance under the loan, breach or damages. The deed of trust is between plaintiff and Wall Street Mortgage Bankers Ltd, not CitiMortgage. The cited contractual language does not require a loan servicer to give notice of acceleration of the subject mortgage loan, it requires the lender to do so. An agent is generally not liable upon...

Excerpt: ...ividually liable for the entities' obligations and debts. Because the running of the statute of limitations does not appear “clearly and affirmatively” from the dates alleged in the 2 ndAC, the statute of limitations defense does not provide grounds to sustain the demurrer. See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4 th 1397, 1403. The 2 ndAC also alleges sufficient facts to state a cause or action for Breach or the Implied Co...

Excerpt: ...ndants to disclose all of their experts, including those related to plaintiff's personal injury, emotional distress and future economic damages, would be severely prejudicial. As discussed in the oppositions to this motion, there is still significant discovery to be performed in order for the parties to have a foundation upon which to base a decision as to whether, how many and whom they will designate as experts. Moving party to give notice. ...

Excerpt: ...stained as to 2 nd& 3 rd sentences, lack of foundation and hearsay, overruled as to first sentence. 3. Sustained hearsay. 4-10 Overruled 11. Sustained, lack of foundation as to first sentence, Overruled as to balance. 12. Overruled. 13. Sustained, hearsay. Plaintiff's admissible supporting evidence fails to establish a probability of likelihood of success on any cause of action in her Complaint. The court finds the documentary evidence and Defend...

Excerpt: ... attorney/client relationship (FAC at Paras. 10, 14), but fails to allege facts as to the remaining elements of breach, causation and damages. Rather, these elements are alleged as conclusions only. (FAC at Paras. 15-17.) A complaint is required to state “facts constituting the cause of action, in ordinary and concise language.” (CCP 425.10(a)(1); emphasis added.) “[P]leading conclusions of law does not fulfill this requirement [of CCP 425....

Excerpt: ...tory framework established [in sections 2924 to 2924k] to govern nonjudicial foreclosure sales is intended to be exhaustive.” (Moeller v. Lien (1994) 25 Cal.App.4 th 822, 834; see also I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285 [“These provisions cover every aspect of exercise of the power of sale contained in a deed of trust”].) “Because of the exhaustive nature of this scheme, California appellate courts have ref...

Excerpt: ... that the cause of action appears barred by Bus. & Prof. Code § 16600. The sale transaction pled in paragraph 15 of the FAC does not appear to fall within the exception at Bus. & Prof. Code § 16601. It is alleged that Leavitt sold the assets to plaintiff, not Garrett. The facts pled in the FAC are also insufficient to establish that the contractual restriction upon solicitation of plaintiff's clients was necessary to protect trade secrets, and ...

Excerpt: ... is limited to the existence of, filing of, and legal effect of the pleadings, but not as to the truth of any disputed factual matter therein. The Demurrers to the First and Second Causes of Action are each OVERRULED. The 2 ndAXC adequately alleges the legal effect of the agreement between the parties. The Demurrer to the Third Cause of Action For Accounting is SUSTAINED with leave to amend, on the basis that the 2 ndAXC fails to allege facts dem...

Excerpt: ...int in the Florida action does not appear on the face of the first amended complaint, and was the not the subject of a successful request for judicial notice. Defendant's request for judicial notice: Granted as to Items 6, 7, 8, and 15, and denied as to the remaining Items. The vast majority of the pleadings from the Florida courts bear a notation “Unofficial Document” which creates a substantial doubt as to their trustworthiness. None of the...

Excerpt: ...ponse is internally inconsistent, in that defendant avers that he lacks sufficient knowledge to formulate a response as to contributing factors, but also includes an unqualified admission as a supplemental response. If defendant professes lack of knowledge as grounds for an inability to deny, then his response needs to comply with CCP 2033.220(c). If his response consists of an unqualified admission, this is not necessary. Defendant's supplementa...

Excerpt: ...sh subpoenas. No opposition. Motions granted. There is no evidence defendant complied with CCP § 1985.3(b)(2) and (3). The statute requires that service on the consumer (or counsel of record) be made "[n]ot less than 10 days prior to the date for production specified in the subpoena duces tecum," and "[a]t least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail [...

Excerpt: ...87, 1297 to 1298. The Cinel case is distinguishable as the arbitrators had already terminated the arbitration. Also, the resetting of trial simply followed the denial of the motion to confirm arbitration award by the court. The Roldan case is distinguishable as it addressed whether an arbitration could proceed when plaintiffs claimed a financial inability to pay fees relating to the arbitration forum. This was based on the public policy of provid...

Excerpt: ...h 4 of the deposition subpoena. With the exception of the term “work party”, which was subsequently adequately defined by Moving Party's counsel via email, the terms “photography”, “airplane”, “airport,” and “airplane flight” are not so vague and ambiguous such that Responding Party cannot properly respond. A party objecting to discovery as vague and ambiguous has the burden to show such vagueness or ambiguity and, in respondi...

Excerpt: ...hould not be viewed as the basis of any contractual obligations of Hyundai.” The plain meaning of this term is that, with the exception of at-will employment, none of the terms contained in the handbook, including the arbitration provision, rise to the level of a binding contract. Even if the court were to find the language ambiguous, that ambiguity would have to be interpreted against Hyundai as it drafted the handbook. There are many ways an ...

Excerpt: ...though a non- signatory, as an employee of defendant FI may enforce this agreement. See, Thomas v. Westlake (2012) 204 Cal.App.4 th 605, 614. Consideration of an application for employment is sufficient to support an agreement for binding arbitration. See, Mago v. Shearson Lehman Hutton Inc. (9 th Cir. 1992) 956 F.2d 932, 933 to 934. The Romo case is distinguishable because the court concluded the arbitration agreement was separate from the emplo...

Excerpt: ...emurrer is sustained. The plaintiff may file a first amended complaint by 2/22/19. 2. Defendant's motion to strike portions of plaintiff's complaint. No opposition. Motion granted in part, with leave to amend, and denied in part. The motion is granted with respect to the claim for $500,000.00 in damages, but denied as regards the claim for a return of the $10,000.00 allegedly paid to defendant for lease of the subject property. Plaintiff has labe...

Excerpt: .... However, there is nothing in the referenced paragraph that explicitly states the settlement agreement is deemed rescinded or is otherwise void if or when plaintiff files another FINRA action. Moving party's request for judicial notice is granted. Moving party to give notice. ...

Excerpt: ...that of the $221,471.00 in attorney's fees sought by Defendants, the sum of $173,617.50 was reasonably and necessarily incurred in this action. The court significantly reduced the fees sought by the Landay Roberts Firm on the grounds of overbilling and pervasive block billing, rendering the court's job difficult to impossible to determine the time spent on a number of entries. Defendants failed to meet their evidentiary burden as to the flat fee ...

Excerpt: ...he shipping in the first place. While probably wishful thinking on the part cross-complainant (that it will ever be able to prove the necessary fraudulent intent) it is sufficient for the pleading stage. Defendant to file an answer to the first amended cross – complaint by 2/8/19. 2. Cross-defendant's motion to strike portions of the first amended cross-complaint. Motion granted in part and denied in part. The court grants the motion with respe...

Excerpt: ...stence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821. Plaintiff has alleged the existence of the contract in paragraph 13, plaintiff's performance in paragraph 14, defendants breach in paragraphs 15 and 16 and damages in paragraph 18. The second cause of action for rescission is properly...

Excerpt: ...mption, actually implied pre-emption, defendants have not carried their burden of establishing that the Legislature created a statutory scheme such that it intended to pre-empt the field. American Financial Services Ass'n v. City of Oakland (2005) 34 Cal.4 th1239, 1251 to 1255 [Predatory lending scheme, enforcement mechanisms, and defenses, so extensive in scope to demonstrate an intention by the Legislature to adopt a general scheme for regulati...