Excerpt: ...efault And Vacate Default Judgement Pursuant To Ccp 473 (B); Memorandum Of Points And Authorities In Support Of Defendants Motion, Declaration Of Andrew Quan; Exhibit A; [Proposed] Order; [Proposed] Answer Defendant Asfaw Tedla's motion to set aside default and vacate default judgement pursuant to CCP § 473(b) is granted. Since any doubts as to the application of section 437 are resolved in favor of the party seeking relief, the court finds ...

Excerpt: ...where a proposed cross‐complaint is based on facts put in issue by the complaint and answer. (Danzinger v. Peebler (1948) 88 Cal.App.2d 307, 310.) Plaintiff Ross Moore has not demonstrated any prejudice in granting leave to Defendant to file the cross‐complaint. This motion was made only eight months after the complaint was filed, six months after answer filed, and only weeks after obtaining the documents and testimony needed by Defendant to ...

Excerpt: ...lifornia has a liberal policy of allowing leave to amend and where undue prejudice to opposing parties can be avoided, denial of leave to amend that prevents a meritorious cause of action constitutes an abuse of discretion. (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031.) Ledcor's did not unreasonably delay in bringing this motion as it had no reason to sue ACCO prior to the September 28, 2018 announcement that ACCO's in...

Excerpt: ...ant Gloria Lopez is sustained with twenty days leave to amend. Among other possible reasons, the negligence and breach of contract claims are deficient because the delayed discovery allegation fails to allege any facts showing that Ms. Lopez could not "through the use of reasonable diligence" discovered the facts on which those claim are based within the one year of their occurrence to avoid the claims being time‐barred by CCP 340.6. Am...

Excerpt: ...The allegation that Mike was a contracting party is a legal conclusion and the more specific allegations indicate that only MJ Tile, Marija Jozinovic's sole proprietorship, was the contracting party. (See pars. BC-1, 3, and Ex. A of the Amended Cross-Complaint.) SUSTAINED WITHOUT LEAVE TO AMEND as to Mike Jozinovic's cause of action for common counts. (See Harris v. Kessler (1932) 124 Cal.App. 299, 303.) SUSTAINED WITHOUT LEAVE TO AMEND a...

Excerpt: ...tion for violation of the FEHA and sustained without leave to amend as to the sixth cause of action for violation of Labor Code 226(a). While no reported case has been cited that permits verification of a DFEH administrative complaint by someone other than the claimant or her counsel, no reported case has been cited that holds that the only persons who can verify a DFEH administrative complaint are the claimant and her counsel. As Keenwawa acknow...

Excerpt: ... demurrer to all six causes of action in the second amended complaint filed by plaintiffs J Garcia Carrion, SA and CIV USA, Inc. is sustained without leave to amend as to the first, second, fourth, and fifth causes of action for breach of contract, promissory estoppel, injunctive relief, and specific performance and off calendar as moot as to the third and sixth causes of action for unfair business practices and conversion. Plaintiffs have not al...

Excerpt: ...39;s motion for summary judgment is granted. The undisputed evidence shows that placing Mr. Ilaoa's feet in the water basin was an inseparable part of the pedicure process and the professional services exclusion applies as a matter of law. (See 16 CCR §§ 977; 980.1‐ 980.4.) The footbath was a professional service in the sense that it constituted an aspect of the nail salon profession and was done for financial gain. There is no ambiguity ...

Excerpt: ... and this case is staying pending the conclusion of arbitration proceedings. The delegation clause in the parties' agreement clearly and unmistakably states that the arbitrator will decide "the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision." (December 2015 TSA, Section 15.i.). Plaintiff Shaun Smith does not substantively challenge the delegation clause. Therefore, the...

Excerpt: ...HRG Employer, LLC's motion to compel arbitration is granted. Plaintiff Patricia Kubichek entered into an arbitration agreement with defendants and the claims Ms. Kubichek alleges in her complaint are "employment‐related disputes" as that phrase is defined in the parties' arbitration agreement. Ms. Kubichek's arguments based on her limited proficiency in English lack merit. (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4...

Excerpt: ...chols' motion to compel third party witness John Montgomery to answer questions and to produce documents pursuant to deposition subpoena is granted. Mr. Montgomery is required to attend a further session of his deposition not exceeding three hours and may not refuse to answer any questions on the grounds of attorney‐client privilege or attorney work product regarding his communications with and work for defendant Mark Strehelow pertaining t...

Excerpt: ...piracy and denied as to all other causes of action. Mr. Dyer has not satisfied his first prong burden of showing that the claims arise from activity protected by the anti‐SLAPP statute as to the first through eighth causes of action. Those claims arise from conduct allegedly committed by Mr. Dyer prior to his termination from ELI. While this lawsuit was proposed in emails in an effort to induce Mr. Dyer to settle his DLSE claims, the first thro...

Excerpt: ...ted and this case is stayed pending conclusion of the arbitration proceedings. Unlike Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1574, Ms. Whetstone has affirmatively asserted that she is a signatory to an existing valid written agreement containing an arbitration clause. Since plaintiff Eric Alexander's complaint seeks to enforce the terms of this written agreement as a third party beneficiary, Mr. Alexander is equitably esto...

Excerpt: ...; a trial has already been held in this case. (See id. at sub. (e).) Defendants' common law motion for judgment on the pleadings is GRANTED and DENIED as follows: The motion is DENIED as to the breach of contract cause of action. Plaintiffs sufficiently plead the terms of the contracts according to their legal intendment and effect. To plead a contract claim according to its legal effect, the plaintiff should allege the making and then procee...

Excerpt: ...n Friday, December 7, 2018, Line 6, (2 of 2) Defendant David King-Stephens, M.D.S' Motion For Summary Judgment Or, In The Alternative, Summary Adjudication Of Issues; Memorandum Of Points And Authorities; Separate Statement Of Undisputed Material Facts; Declaration Of Robert Fisher, M.D.; Declaration Of Kristen A. Pico; Supporting Evidence (For Tentative Ruling Only) Lastly, plaintiffs fail to present sufficient evidence showing that Dr. King...

Excerpt: ...ned as to all ten causes of action without leave to amend. The third cause of action for violation of the Ellis Act and the fifth cause of action for violation of section 37.9A of the San Francisco Rent Ordinance are both time‐barred. Government Code section 7060.2 and Rent Ordinance section 37.9A(d) establish a limitations period for bringing a claim regarding failure to offer to re‐rent the premises of three years from the date of withdrawa...

Excerpt: ...aintiffs Seventh Cause Of Action Plaintiff Richard Denton's motion for reconsideration of the court's oral ruling striking defendant Barbara Hale from the seventh cause of action for unlawful harassment in his second amended complaint is denied. The court will address the merits of this motion based on the September 25, 2018 hearing since no written order has yet been filed as to the ruling sought to be reconsidered. The EEOC documents ar...

Excerpt: ...d on the assumption that the claims alleged in the second amended complaint are not implied contractual indemnity claims, yet liberally construing those claims, they are implied contractual indemnity claims. The economic loss doctrine does not apply to contractual claims. The joint obligation for an implied contractual indemnity claim can be based on the contractual obligation that a subcontractor owes to an owner. (See, e.g. Loduca v. Polyzos (2...

Excerpt: ...��defendant Michael Guta's motion for summary judgment and alternative motion for summary adjudication on his complaint for breach of contract and common counts and Casey Securities, LLC's first amended cross‐complaint for rescission, breach of contract, and fraud are denied in their entirety. There are triable disputes regarding the amount of money owed to Mr. Guta and whether the parties had a good faith disagreement about that sum. (...

Excerpt: ...t title is sustained as to the quiet title claim against Mr. Cai and overruled as to all other claims. Plaintiff Liz Digdigan acknowledges that her quiet title claim does not lie against Mr. Cai. Except for her quiet title claim against Mr. Cai, all claims are sufficiently alleged. Liability against Mr. Cai is adequately alleged based on Mr. Cai allegedly being the alter ego of Fremont Homes. Liability against Fremont Homes is adequately alleged ...

Excerpt: ...oussos' second amended complaint is overruled in its entirety. Per Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 662, in the absence of ownership or possession, the existence of a duty to protect from criminal acts of third parties "will depend upon the proprietor's actual or apparent control of the adjacent property." While taken in isolation allegations about a commercial benefit from use of adjacent property, a &...

Excerpt: ...,307.60 in attorney's fees and $1,547.73 in costs. In the court's ever‐evolving effort to determine a reasonable fees award in a lemon law case, after review of the papers filed by the parties and court's own experience, the court has determined that the hourly rates and time claimed by Mr. Sutton's counsel are excessive for a case of this kind. Moreover, for a simple case nine different timekeepers is excessive. The high end of...

Excerpt: ...otion for attorney's fees and costs per CCP 425.16 is granted in small part. Ms. Gatti is awarded fees and costs of $20,688.70, comprised of $20,600 in fees and $88.70 in costs, against cross‐ complainant Loop A1 Labs Inc. Ms. Gatti is entitled to a fee award for her successful striking of Loop's cross‐claim for malicious prosecution. That award is limited to fees that were reasonably incurred. Based on the court's own experience ...

Excerpt: ...ered against him on February 13, 2018 is continued to January 17, 2019 to give the parties an opportunity to meet and confer and, if necessary, file supplemental papers regarding the amount Mr. Del Olmo will be required to pay plaintiff Leslie Lapayowker as a condition of setting aside the September 27, 2018 order. The court finds that there is sufficient change of circumstances since the September 27, 2018 order was issued to warrant reconsidera...

Excerpt: ...n of production per CCP section 437c. The Privette doctrine does not apply to a non-hirer subcontractor such as Skanska in this case. The doctrine is based on notions of fairness. "[A]n independent contractor's employee should not be allowed to recover damages from the contractor's hirer, who 'is indirectly paying for the cost of [workers' compensation] coverage, which the [hired] contractor presumably has calculated into the ...