Excerpt: ... of the summons and complaint on defendant Gebremariam is granted. By opposing the motion on its merits, plaintiff Lisa Brown waived her objection based on untimely service of the moving papers. (Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1288). Ms. Brown failed to provide sufficient evidence to satisfy her burden to prove that service of summons and complaint made on Mr. Gebremariam was proper. The declaration of Ms. Barhe shows that she re...

Excerpt: ...ed by plaintiff Veronica McCluskey. Airbnb has shown that Ms. McCluskey assented to the Terms of Service, including the arbitration language therein, because the sign up screen adequately informed Ms. McCluskey that, by clicking to sign up, she was agreeing to the Terms of Service. Under both the Federal Arbitration Act and the California Arbitration Act parties may delegate issues of arbitrability to the arbitrator, including disputes regarding ...

Excerpt: ...and supplemental declarations fail to show that the assertedly defamatory statements quoted at 4:12‐5:4 of Auction's reply memorandum are false. At most, Auction shows that there were fewer watch lots on the third auction. (Brenhouse Dec., par. 5.) Auction also fails to show imminent and irreparable harm. The last communication Mr. Berz sent was on March 19, 2018 and there is little evidence to indicate that the asserted "smear campaign...

Excerpt: ...tion is not timely filed since Mr. Dietrich has not shown that he was unaware of facts necessary to make a CCP 425.13 motion more than nine months prior to July 30, 2018 and he made a diligent effort to obtain any facts he may have needed to make such a motion more than nine months prior to July 30, 2018 as required by Goodstein v. Superior Court (1996) 42 Cal. App. 4th 1635. Nine months prior to July 30, 2018 is October 30, 2017. Prior to Octobe...

Excerpt: ...s of a proposed injunction and/or attachment protecting the rights of Mr. O'Rourke with regard to Revelry Restaurant L.L.C. Mr. O'Rourke is precluded from obtaining a receiver for Revelry on grounds that the corporation is in imminent danger of insolvency because Mr. O'Rourke is no longer suing derivatively. CCP 564(b)(6) does not authorize the appointment of a receiver for such grounds when the lawsuit is by a private person. Mr. O&#...

Excerpt: ...rney's fees per Jaffe v. Pacelli (2008) 165 Cal.App.4th 927. Those fees were incurred as a result of attempting to enforce the judgment and are recoverable. (Jaffe, 165 Cal.App.4th at 938.) The Sangers can recover their legal research fees. When discussing computer legal research costs, Ladas v. CSAA (1993) 19 Cal.App.4th 761, 776 stated: "Subdivision (b)(2) precludes recovery of investigative expenses and attorney's fees are not comp...

Excerpt: ...4; The Department correctly notes that the ALJ's decision repeatedly and erroneously states that the Department must show a permanent and substantial incapacity. (AR000758; 762; 764; 765.) The lack of permanence appeared to be a basis for the decision (AR000762, par. 16) and the ALJ's references to the controlling statutes and Mansperger v. Public Employees Retirement System, (1970) 6 Cal.App.3d 873, does not cure the error. That error al...

Excerpt: ... the April 4, 2018 hearing is re‐affirmed. At the April 4 hearing the court took the motion under submission to more fully consider the argument by plaintiff David Norton that the order denying defendant Otis Elevator Company's motion for summary judgment required that this motion be denied. Because Otis's motion was denied due to Otis's failure to satisfy its burden of production, not because there was a triable dispute, the ruling...

Excerpt: ...cribing the feel and sight of the vomit and her experience of coming into contact with similar substances raise a reasonable inference, when viewed in the light most favorable to her, from which a trier of fact could find that the vomit had been on the platform long enough and was of such obvious nature to have been discovered by BART in the exercise of due care. (Catalan Depo. 31‐33; Catalan Dec. par. 15). Ms. Catalan's declaration, which ...

Excerpt: ...insurance bad faith for failure to properly investigate a claim; and b) sustained with twenty days leave to amend as to the fourth, fifth, sixth, and seventh causes of action for misrepresentation, false promise, fraud, and negligent infliction of emotional distress. CSAA's argument that it is not the insurance company that issued the automobile insurance policy is not amenable to resolution at the pleading stage. Plaintiff Trent Jason adequa...

Excerpt: ...for Tentative Ruling Purposes Only (Part 3 Of 3). The array of isolated and one-off findings of misconduct committed by Mr. Ramirez, coupled with the lack of any previous discipline against Mr. Ramirez, are insufficient as a matter of law to warrant the most extreme discipline of dismissal. A full review of the Administrative Record establishes that the misconduct committed by Mr. Ramirez, while serious, was not of the magnitude to be the predica...

Excerpt: ... a motion to sever the first and second causes of action for malicious prosecution and constructive fraud in the first amended complaint filed May 13, 2015 from the remaining causes of action and, as so treated the motion is granted. No opposition filed. No later than April 18, 2018 plaintiffs should file a new complaint on the first floor of the Civic Center Courthouse containing only the first and second causes of action in the first amended co...

Excerpt: ....812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may ...

Excerpt: ...#39;s motion to set aside default and default judgment is granted on the condition that defendants and/or their counsel pay $2500 to plaintiff Noise 13 Design Incorporated. The defaults entered against defendants on December 6, 2017 and the default judgment issued on February 27, 2018 are set aside. No later than April 13, 2018 defendants and/or their counsel must pay $2500 to Noise 13. No later than April 20, 2018 defendants must file a motion t...

Excerpt: ...p nor any other matter causes him to be other than fair and impartial in deciding this case. The Regents of the University of California's motion for summary judgment on all causes of action in the first amended complaint filed by plaintiff Yolanda Jefferson is granted. The Regents presented sufficient evidence to satisfy their burden of production on all five causes of action alleged in the complaint and Ms. Jefferson did not present any evi...

Excerpt: ...r any other matter causes him to be other than fair and impartial in deciding this case. The Regents of the University of California's motion for summary judgment on all causes of action in the first amended complaint filed by plaintiff Annette Elliot is granted. The Regents presented sufficient evidence to satisfy their burden of production on all five causes of action alleged in the complaint and Ms. Elliot did not present any evidence crea...

Excerpt: ...ction, Otis says it was merely "an elevator service company"; in fact, Otis designed, manufactured, installed, maintained, repaired and serviced the elevator. (Plaintiff's Opposition, Decl. of James Mills, Exh. A, attached "Standard Provider Terms and Conditions Agreement" between Safeway Inc. and Otis Elevator.) As to the breach and causation elements, Otis relies on an expert declaration. However, the declaration's four ...

Excerpt: ... deemed trivial as a matter of law and thus unable to support a slip‐and‐ fall case. (See, e.g., Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724‐26.) The upper limit of triviality is three‐fourths inch to one and a half inches. (Id.) In our case, plaintiff produced photographs showing the at‐issue depression in a municipal parking lot to be less than three‐fourths of an inch. Plaintiff's counsel declares in opposition th...

Excerpt: ...enied in its entirety. Assuming without deciding that the court can consider the materials relied on by Sotheby's for its motion that are not alleged in or attached to the FAC, all allegations sought to be stricken are adequately alleged. As to the allegations regarding Sotheby's failure to obtain the errors and omissions insurance policy, the ICA is reasonably susceptible to plaintiffs' proffered interpretation of the ICA. As to the ...

Excerpt: ... alleged in support of any of the second through fourteenth affirmative defenses are based on any conduct that occurred after the date of the CPUC decision and Mr. Hines has neither stated nor suggested that he can allege any facts that occurred after the CPUC decision that supports any of those affirmative defenses. Therefore, the second through fourteenth affirmative defenses fail as a matter of law, leaving only the first affirmative defense o...

Excerpt: ...eates a fiduciary relationship. Mr. O'Rourke sufficiently alleges that he had an attorney client relationship with Mr. Cohen and those allegations, which must be accepted as true on this demurrer, support the fifth cause of action for breach of fiduciary duty. Mr. Cohen's arguments that he merely acted for the LLC and that he was only a scrivener are factual issues that are not amenable to resolution on a demurrer. The sixth and eighth ca...

Excerpt: ...rbitration is granted and this case is stayed pending the conclusion of arbitration proceedings on the claims alleged by plaintiff Daniel Pulido. The incorporation of the AAA Commercial Rules does not constitute clear and unmistakable evidence of an intent to delegate arbitrability to the arbitrator. Notwithstanding federal authority to the contrary, the court chooses to adhere to the well‐reasoned and persuasive dicta in Ajamian v. CantorCO2e,...

Excerpt: ... default of May 30, 2017 and the default judgment of July 5, 2017 is granted. Based on Mr. Muhamadiev's statements and presentation in the courtroom on March 1, 2018, the court is persuaded that Mr. Muhamadiev was unaware that he was required to file a response to the complaint by May 25, 2017 and he did not realize that a default and default judgment had been entered against him until he recently learned that his driver's license was sus...

Excerpt: ... rarely possible to plead the exact words. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations are sufficient to put Farias on notice of the issues to be admitted or denied. Second (Conversion) SUSTAINED WITH LEAVE TO AMEND: "Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved." (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1...

Excerpt: ...of action three, seven and eight are effectively based on a theory that attorney Bagchi conspired with defendant Allis; thus, prior court approval is required under Civil Code 1714.10. The exception in 1714.10(c) does not apply, as the complaint (16:13‐14) pleads that "Bagchi was representing the partnership," and no "independent legal duty to the plaintiff" is pled. Hence, this third demurrer is SUSTAINED WITH LEAVE TO AMEND. A...