Excerpt: ...g rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (CRC 3.1330; see also Conde...

Excerpt: ...ruitment services to Defendant. (UMF, No. 1.) Although in its memorandum Plaintiff vaguely asserts that it performed all obligations under the Agreement, it has not produced any evidence of performance and the Declaration of John York does not address this issue. Under the terms of the Agreement, Defendant was charged a flat fee of $15,000 for job searches for Territory Sales jobs for Texas, Northeast USA and North Central USA. (Plaint. Ex. A.) T...

Excerpt: ...e Decision for Fraud denied. The facts do not support a finding of fraud. Therefore, the motion is denied. Defendant requests that the court award it additional attorney's fees, such request requires a separate noticed motion.” Thereafter, on May 13, 2022, Plaintiff filed a motion for reconsideration. On June 7, 2022, this court posted a tentative ruling denying Plaintiff's motion for reconsideration. Once again, Plaintiff did not request oral ...

Excerpt: ...icle were estimated to be $11,564.70. (Complaint, ¶ 3.) However, Luong's insurance carrier obtained a Kelly Blue Book current valuation of Plaintiff's vehicle as within a range of $4,892 to $6,491. (Hunter Dec., Exs. B, C.) Luong contends that Plaintiff's allegation in the complaint that the subject tree sits on the border of both properties is supported by google map photos. (Hunter Dec., Ex. N.) Under California law, trees that stand partly on...

Excerpt: ...breach; and (4) damages. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) For the contract, Defendant contends that Plaintiff failed to provide a copy of the contract that contains Defendant's name. Defendant relies on Cisco v. Van Lew (1943) 60 Cal.App.2d 575, which involved a real estate contract. However, real estate contracts are governed by the statute of frauds. (Civil Code §1624.) “The existence of mutua...

Excerpt: ...is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, [the court shall] vacate any (1) resulting default entered by the clerk… or (2) resulting default judgment or dismissal entered against his or her client.” (CCP §473(b).) When an attorney affidavit of fault is filed, there is no requirement that th...

Excerpt: ...439.) A written contract may be pleaded verbatim or generally “according to its legal intendment and effect.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) Alternatively, a written contract can be pleaded by attaching a copy of the complaint and incorporating it by reference. (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091.) In this case, Cross‐Complainants do not allege t...

Excerpt: ...vil Code section 52, the Unruh Act, authorized fee award to a person “denied the rights provided in Section 51, 51.5, or 51.6.” (Id. at 490.) Based on that language, the court rejected Doran's entitlement to attorney fees because the legislative history of the fee shifting statute demonstrated that the intent was to impose liability for attorney fees on “only violators of the Unruh Act”. (Id. at 491.) Because the accepted offer was silent...

Excerpt: ... Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984‐985 (citing holding of Levy v. Superior Court, supra, 10 Cal.4th at p.586.).) CCP §664.6 and the accompanying case law is clear – the court can only enter judgment from a written stipulation where the agreement is signed by the parties themselves. Here, the stipulation was not signed by the parties and thus was not, and could not have been, entered by the court. Accordingly, the previously signed...

Excerpt: ...95) 76 Cal.App.4th 176, 181. Since judgment has been entered as to County of Riverside, the Court lacks jurisdiction to hear the request for reconsideration as to County. Id. at 181‐ 182. To the extent that Plaintiff seeks to reconsider the 6/14/19 order dismissing Cois M. Byrd Detention Center, Sheriff Stan Sniff, and Riverside County Jail from this matter, the motion is denied as it is untimely. To the extent that Plaintiff seeks leave to ame...

Excerpt: ... only through counsel (Merco Const. Engineers, Inc. vs. Mun. Ct. (Sully‐Miller Contracting Co.) (1978) 21 Cal. 3d 724, 731). This prohibition stems from the notion a corporate representative who would likely appear on behalf of the corporation would be engaged in the unlicensed practice of law (Gamet vs. Blanchard (2001) 91 Cal. App. 4th 1276, 1284). While earlier cases suggest that papers filed by a corporation in pro per are “void” (e.g.,...

Excerpt: ...or discretionary. (CCP §473(b).) Relief is mandatory if the attorney is willing to take the blame and pay the costs; the court must set aside the entry of default, default judgment or dismissal. (Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) Without an attorney affidavit of fault, relief is discretionary and must be based on a showing of mistake, inadvertence, surprise, or mistake. (Id.) There is a six ‐month limitatio...

Excerpt: .... 4th 612. In this case, however, the complaint is uncertain. At ¶10 of the FAC plaintiff describes theories of liability (motor vehicle negligence, general negligence, intentional tort) that are not described by the factual allegations in the attachment at all, which doesn't reference an accident, an automobile, or the negligent operation of an automobile causing an accident. Instead, the attachment sounds much more like a claim for breach of o...

Excerpt: ... 4th 612. In this case, however, the complaint is uncertain. At ¶10 of the FAC plaintiff describes theories of liability (motor vehicle negligence, general negligence, intentional tort) that are not described by the factual allegations in the attachment at all, which doesn't reference an accident, an automobile, or the negligent operation of an automobile causing an accident. Instead, the attachment sounds much more like a claim for breach of or...

Excerpt: ...the twoyear period is enlarged or that the statue is tolled under Ins. Code § 11580.2(g), which only applies to subrogation claims under the Uninsured Motorist Statue. As to the second cause of action for subrogation, Mercury fails to plead that the injury to its insured involved an “uninsured vehicle” that triggered Mercury's obligation to pay uninsured motorist benefits, thus entitling it to a subrogation claim under Ins. Code § 11580.2(g...

Excerpt: ...will exceed $25,000.00. (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 274.) Even though the requirement for reclassifying a matter from limited civil to unlimited civil is less stringent than the opposite, plaintiff fails to provide any details regarding the nature of his injury, the treatment received, or when he discovered the damages would possibly exceed $25,000. In the absence of such evidence, plaintiff has failed to demonstrate th...

Excerpt: ...ing on the party. (In re Horton (1991) 54 Cal.3d 82.) In this case, no stipulation was even needed before Commissioner Gregory heard the matter. Plaintiff filed this action as a limited civil case valued by Plaintiff as “OVER $10K/UNDER $25K.” (See Complaint Coversheet.) Thus, Commissioner Gregory had jurisdiction to consider the matter on the merits, even without a stipulation, and both the Bifurcation Order and Final Ruling are valid. (Gov....

Excerpt: ...dentify what costs these fees were used for and provides no authority that allows her to recoup these fees. As such, the request to tax $405.00 of the filing fees is granted. Petitioner seeks $150.00 in service of process fees. While service fees can be recouped, they must be reasonable. California Rules of Court, Rule 8.278(d)(1)(B). Petitioner does not dispute that she did not need to personally serve documents on Respondent. She contends that ...

Excerpt: ...3.030(d) both provide that a Court may make any such orders that are just, including a terminating sanctions. There is no justification as to why Defendant has disobeyed the Court's orders. Although there was no opposition, the Court recognizes that terminating sanctions are typically a “last resort,” but Defendant's unwillingness to cooperate in the litigation process warrants no other sanction. Indeed, it would be a futile act to impose on ...

Excerpt: ... in opposition. The second issue is deposition costs of $479.84, contending the deposition of Matthew Good was not necessary as he did not know anything about Plaintiff's vehicle. Defendant contends Good was the service advisor. As pointed out by Defendant, discovery is broad. The motion is denied. The third issue is the service of process of $136 for subpoenas as Plaintiff contends that he did not object to the authenticity of the documents. Def...

Excerpt: ...arsay, relevance and speculation. The court declines to rule on the evidentiary objections and will not consider the declaration. The demurrer is OVERRULED in its entirety. Collateral Estoppel does not apply because Plaintiffs were not parties to the family court action. Plaintiffs plead sufficient facts to state a cause of action for breach of contract and common counts, and the Complaint is not uncertain. The request for sanctions is DENIED. ...

Excerpt: ... insufficient. Since the terms of the written contract are sufficient, defendant's challenge to the fraud claim fails as well. As to the first and second causes of action The first and second causes of action rely on the alleged breach of a written contract described in the FAC as the written “Sales Deal Deposit Receipt” (Deposit Receipt) entered into between the parties. The elements for a breach of contract claim are: (1) contract; (2) plai...

Excerpt: ...otice and the deposition date of 12/31/18, are not the subject of the present motion. Defendant seeks to enforce the Amended Notice of Deposition and the deposition scheduled for 1/9/19. As to the amended notice, the Reply argues plaintiff only requested 10 days' notice and she was given such notice. However, plaintiff's email states the notice should be “re‐serve[d] with 10 days notice” and under the statute a deposition notice which is se...