Excerpt: ...thorities In Support And Declaration Of Jordan Susman: Cross-Defendant's motion to strike the cross-complaint's request for attorney's fees is granted. "We start with the basic proposition that each party to a lawsuit must pay its own attorney fees except where a statute or contract provides otherwise. (Code Civ. Proc., sec.1021.)." (Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 450.) There is no statutory basis for attorney's fees here....

Excerpt: ...ts And Provide Further Discovery Responses: Requests for Production of Documents: #7 why are these materials relevant to the subject matter which is Old Navy's lease which was executed prior to 2019?; #8, 9, 10, 11, and 16 - why are these materials relevant to the subject matter which is Old Navy's lease which was executed prior to 2019 and isn't this an invasion of privacy and confidential information between PG and other tenants even if subject...

Excerpt: ...d covenant of good faith and fair dealing and on the punitive damages prayer. Defendant fails to meet its burden of production that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "In insurance policies, as in all contracts, the law implies a covenant of good faith and fair dealing, and an insurer's denial or delay in paying policy benefits can give rise to tort damages if the denial o...

Excerpt: ...o attach orders and orders for issuance for writs of attachment" are denied. OSK is a lender for the renovation and repurposing of St. Joseph's Catholic Church. OSK does not claim that cross- defendants have failed to make any scheduled payment. Rather, OSK demands a more than doubled interest rate because cross-defendants "defaulted" by completing the project as a "social club" for "art connoisseurs and socialites." Cross-defendants respond with...

Excerpt: ... particularity as a cause of action. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) Here, defendant's answer is factually rich and pleads facts that support the affirmative defenses. Plaintiff's arguments regarding the verifications fail as there is no contention that defendant is acting in bad faith. (See League of Women Voters v. Eu (1992) 7 Cal.App.4th 649, 656 ["'The object of a verification is to assure good faith i...

Excerpt: ...rocess is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Under [Code of Civil Procedure] section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Relief from a judgment...

Excerpt: ...See Code Civ. Proc. sec. 437c(p)(2) [burden of production].) Whether an employee is acting within the course and scope of his job and the employer can be responsible for the employee's conduct under the principle of respondeat superior is generally a question of fact. (See Bingener v. City of Los Angeles (2019) 44 Cal.App.5th 134, 140; Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 434.) An employer can be liable for an e...

Excerpt: ...any of Pittsburgh, PA, TIG Insurance Company, Certain Underwriters at Lloyd's London, and Certain London Market Insurance Companies ("Intervenors") have failed to sustain their initial burden of production pursuant to Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855. It is undisputed between the parties that Plaintiff was present while J&H Marine & Industrial Engineering Company employees ("J&H employees") removed and installed al...

Excerpt: ...mended motion to vacate entry of the default entered against them on September 29, 2020, is granted. The complaint in this action was filed on July 22, 2020, and was personally served on defendants on July 31, 2020. Defendants filed their motion to vacate entry of default on January 8, 2021, more than three months after entry of default. Under ordinary circumstances, that delay might be considered unreasonable. (See, e.g., Stafford v. Mach (1998)...

Excerpt: ...any of Pittsburgh, PA, TIG Insurance Company, Certain Underwriters at Lloyd's London, and Certain London Market Insurance Companies ("Intervenors") have failed to sustain their initial burden of production pursuant to Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855. It is undisputed between the parties that Plaintiff was present while J&H Marine & Industrial Engineering Company employees ("J&H employees") removed and installed al...

Excerpt: ...t defendants made false statements of fact regarding plaintiff's job performance in its termination memorandum and subsequently in writing and orally. (Complaint, pars. 35-43, 68- 77.) Plaintiff sufficiently alleges the substance of the defamation. (See Okun v. Superior Court (1981) 29 Cal.3d 442, 458 ["[S]lander can be charged by alleging the substance of the defamatory statement."] Moreover, defendants should be aware of the allegedly false sta...

Excerpt: ...to the second cause of action for public disclosure of private facts. (The Court's complete tentative ruling has been emailed to all counsel) As a result of the COVID-19 emergency, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the ap...

Excerpt: ... basis for employer liability. "Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right." (Civ. Code sec. 52(b).) "[A]n employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort . . . The theory of rat...

Excerpt: ...dum Of Points And Authorities And Declaration Of Jeffrey Lewis In Support Thereof: Defendants' motion for an award of attorney's fees and costs is granted in the amount of $22,340 in fees and $2,631.56 in costs, for a total of $24,971.56. As the prevailing parties on the special motion to strike, defendants are entitled to recover their attorney's fees and costs. (Code Civ. Proc. sec. 425.16(c)(1) ["a prevailing defendant on a special motion to s...

Excerpt: ...uced by $595 to $3,625.04 to remove a duplicate entry based on Defendants' stipulation. Denied as to the remaining entries. As the prevailing parties in this action, Defendants are entitled as a matter of right to recover all of their costs in this action, regardless of the particular cross‐action or pleading to which the costs may relate. (Code Civ. Proc. sec. 1032(a)(4),(b).) Item No. 15 Fees for Hosting Electronic Documents ($19,628.04). Mot...

Excerpt: ...ection 473(b), a "court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." "It is the policy of the law to favor, whenever possible, a hearing on the merits Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to ...

Excerpt: ... fled the scene without rendering assistance, leaving him injured and bleeding on the ground, is sufficient to establish "despicable conduct" constituting malice. Indeed, as plaintiff points out, such conduct constitutes a felony hit‐and‐run in violation of the California Vehicle Code. (Veh. Code sec. 20001(b); see Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1319, 1336‐ 1338, 1340 [jury awarded punitive damages to plaintiffs where def...

Excerpt: ...d Defendants to complete the certified administrative record submitted to the Court on January 19, 2021 by adding three categories of documents relating to the Board's Finding of Emergency and Addendum #1 for the challenged Emergency Temporary Standard. In a proceeding challenging a finding of emergency under the APA, a court may only consider the following evidence: (1) the rulemaking file; (2) the finding of emergency; (3) an item that is requi...

Excerpt: ... December 17, 2020. The court may not dismiss an action for delay in prosecution unless (1) service is not made within two years after the action is commenced against the defendant; (2) the action is not brought to trial within three years, or within two years under certain circumstances; or (3) a new trial is granted. (Code Civ. Proc. sec. 583.420(a).) "The times provided in subdivision (a) shall be computed in the manner provided for computatio...

Excerpt: ...For Purposes Of Entry Of Tentative Ruling)Rulings:Matter on the Discovery Calendar for Tuesday, February 9, 2021, Line 4, Cross-Defendant Dan Phipps Architects PC's Motion For Terminating Sanctions Or In The Alternative Evidentiary And Issue Sanctions Against Cross- Complainants Christopher Matthew Hunt And Mara C Hunt And Request For Monetary Sanctions Against Christopher Matthew Hunt And His Counsel Of Record Leonard Rifkind Jointly And Several...

Excerpt: ...ative ruling) PLAINTIFF CHERIE POWER's Motion To Compel Defendant Ignacio Cong Fong's Further Responses To Plaintiffs Form Interrogatories, Set Two, Number 15.1 And Requests For Documents, Set One; Request For Sanctions Against Defendant Ignacio Cong Fong And His Attorney Of Record, Jimmie Williams, In The Amount Of $1,719.95 Pro Tem Judge Katherine Gallo, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 ...

Excerpt: ...he required specificity - "how, when, where, to whom and by what means." (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645.) This demurrer is sustained with leave to amend. 5-8 (assault, sexual battery, false imprisonment, intentional infliction of emotional distress). Defendants' demurrer ignores the complaint's allegations that "Uber is a common carrier" and thus liable for assaults "regardless of whether such acts were committed within the course ...

Excerpt: ...without leave to amend based on claim preclusion. Plaintiff's claim is predicated on Uber's alleged statements regarding "safe rides" and background checks. Those claims were previously asserted and resolved as part of a class action settlement in McKnight v. Uber Technologies, Inc., 4:14-cv-05615-JST (N.D. Cal. Jun. 1, 2017), ECF No. 125. An amended (and final) Stipulation of Settlement (the "Settlement") was reached and entered on June 1, 2017....

Excerpt: ...Pro Tem Judge Katherine Gallo, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 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 decid...

Excerpt: ...year‐old plaintiff alleges that defendants ‐ who oversaw both her securities accounts and insurance needs ‐ allowed her long‐term care insurance policy to lapse. Defendants point to arbitration provisions in three agreements. The first is for a "cash management account" not involving insurance. (Michal Dec. Ex. A.) Plaintiff signed the other two agreements as "trustee" for trusts (Id. at Exs. B, C), and her long‐term care insurance was ...

Excerpt: ...ismiss appellant's appeal as untimely pursuant to Labor Code section 98.2(a)" is denied. It is undisputed that the deadline for filing the appeal was August 28, 2020. "A document is deemed filed on the day the clerk receives it (CRC 8.25(b)(1), and the clerk here received the appeal before the deadline." Moreover, "[t]here is a strong public policy in favor of hearing cases on their merits and against depriving a party of his right of appeal." (U...

Excerpt: ...Company of Pittsburgh, PA, TIG Insurance Company, Certain Underwriters at Lloyd's London, and Certain London Market Insurance Companies ("Intervenors") have failed to sustain their initial burden by making an affirmative showing that Plaintiff does not possess, and cannot reasonably obtain, needed evidence to support the element of causation. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) Initially, it is undisputed between t...

Excerpt: ...motion for preliminary approval of class action settlement is denied without prejudice, and the hearing is continued to March 4, 2021. By February 25, plaintiffs shall submit a further factual showing and a revised proposed settlement agreement sufficient to address and resolve the following issues: 1. Plaintiffs ask the Court to approve the class notice, which the moving papers indicate is attached to the proposed settlement agreement as Exhibit...

Excerpt: ... agreed to dismiss their complaint against Alfa with prejudice for a waiver of costs. Movant presents evidence that it lacks any substantial exposure to liability in this case because it had no contract with defendant 1233 Polk Street LLC dba Mayes Oyster House to provide security on the date of the incident in question. Mr. Ieremia, the security guard, testified unequivocally that "Alfa Private Security Services, Inc. was not performing any secu...

Excerpt: ...e determined from the contract and not by reliance on the independent doctrine of equitable indemnity.'" (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 873.) Plaintiff, however, can plead alternative equitable theories of liability where the express indemnity agreement is unenforceable or inapplicable to the parties' dispute. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389 [party could not assert qua...

Excerpt: ...his 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 be signed via fax or consent to sign given by email. If not all...

Excerpt: ..., 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 be signed via fax or consent to si...

Excerpt: ...ts all the requirements set forth in CRC 2.812 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 ...

Excerpt: ...y)(Part 3 of 3): The court denies summary adjudication on the claim for punitive damages. The disability discrimination causes of action can support the claim and there is no evidence regarding whether Sanchez is or is not a managing agent of G.A.T. per Civil Code sec. 3294. As a result of the COVID-19 emergency, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the h...

Excerpt: ...of action 1‐8 and 10‐11 are overruled. Plaintiff alleges sufficient facts that defendant is the successor of plaintiff's employer, Caruma Technologies Inc., and defendant is liable for Caruma's debts. The law is clear that "[i]f a corporation organizes another corporation with practically the same shareholders and directors, transfers all the assets but does not pay all the first corporation's debts, and continues to carry on the same busines...

Excerpt: .... (See Code Civ. Proc. sec. 437c(p)(2).) "The driver of an automobile must manage his vehicle so as not to create an unreasonable risk of harm to others " (California Body & Trailer Mfrs. v. Albrecht (1971) 16 Cal.App.3d Supp. 1, 3.) There is a triable issue of material fact regarding whether defendant breached this duty of care. The evidence shows that defendant pulled the vehicle next to the bike lane‐not the curb‐and told co‐defendant Bu...

Excerpt: ...ovide the Court with sufficient evidence to determine whether the overall amount of the proposed settlement is fair and adequate in view of the purposes and policies of PAGA, taking into account such factors as the adequacy of the civil penalties in light of the potential maximum if the matter were to go to verdict and the risks of litigation. (Lab. Code Sec. 2699(l)(2); see Haralson v. U.S. Aviation Services Corp. (N.D. Cal. 2019) 383 F.Supp.3d ...

Excerpt: ...ent Of July 29, 2011. Defendant's motion to vacate judgment is denied. Defendant fails to show that the judgment is void or that plaintiff or the Court acted in excess of its jurisdiction. On March 18, 2002, Defendant Mae Ratunil Galvez‐Lantion resigned with charges pending from the State Bar of California. The Supreme Court awarded costs in favor of the State Bar pursuant to Business and Professions Code section 6086.10 ("In any order . . . ac...

Excerpt: ...the requirements set forth in CRC 2.812 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...

Excerpt: ...ied without prejudice to Plaintiffs filing a supplemental submission. Plaintiffs have not presented sufficient information to enable the Court to evaluate the reasonableness of the proposed settlement. In order to determine whether a proposed class action settlement is fair and reasonable, a trial court "should consider relevant factors, such as the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigat...

Excerpt: ...ich followed demurrers to Flatto's original complaint: 4 (Common Law Misappropriation), 7 (Breach of Implied Contract), 9 (Intentional Interference With Prospective Economic Advantage). Flatto belatedly pleads these three new causes of action. Each has a statute of limitation that runs in two or three years, so the causes are time‐barred. Flatto's SAC alleges that Betabrand began misappropriating her designs by posting them on social media site...

Excerpt: ...ets all the requirements set forth in CRC 2.812 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...

Excerpt: ... bring a[] . . . defendant within the reach of the state's jurisdiction for purposes of a personal judgment…." (Allen v. Superior Court (1953) 41 Cal.2d 306, 310‐311.) Defendant does not challenge jurisdiction on the basis that she is not domiciled in California, and her own proof of service states that she is "domiciled in California." (Def.'s Mot, pg. 5.) A motion to quash can also challenge lack of jurisdiction where there has not been val...

Excerpt: ... Cosco Fire Protection, Inc.'s motion for summary judgment is denied. Defendant fails to maintain its initial burden of production. Defendant relies on the "power press" exception to workers' compensation exclusivity, Labor Code section 4558, which provides that an employee "may bring an action at law for damages against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of, or knowing failur...

Excerpt: ...ocedure section 473(b) does not provide Defendant with a basis for relief. A motion for relief under that statute "shall . . . be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." Default was entered on April 22, 2020. Defendant did not file this motion to set aside until November 25, 2020, more than six months later. "The six-month time limitation is jurisdictional; th...

Excerpt: ...g good faith settlement is denied. West Coast has not presented sufficient admissible evidence to enable the Court to determine "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability." (Tech‐Bilt, Inc. v., Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499.) "If 'there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant's liability, then a d...

Excerpt: ...nc.'s summary judgment motion is granted. Maventus has demonstrated that plaintiff Jacqueline Holden never paid it the $170,000 which was the supposed consideration for the promissory note (SSUF pp. 4, 7‐18), and Holden's opposition papers make no attempt to claim otherwise. Thus, Holden's cause of action for "breach of contract ‐ promissory note" fails for lack of consideration. Likewise, Holden's conversion cause of action fails, because Ma...

Excerpt: ...on. Interior designer Charise Rosenthal alleges she stepped on the slippery mud, almost fell and was injured. She sued Ren Lei for negligence. The Ren Lei motion's only arguments are that (1) it did not breach its duty not to create unreasonable risk of harm by leaving the site unattended "for five minutes" and (2) the site was "open and obvious." However, triable issues exist on both points. Whether it is appropriate to leave tile mud unattended...

Excerpt: ...a harsh remedy because it causes the defendant to lose control of his property before the plaintiff's claim is adjudicated," so "the requirements for the issuance of a writ of attachment are strictly construed against the applicant." (Martin v. Aboyan (1983) 148 Cal.App.3d 826, 831; Blastrac, N.A. v. Concrete Solutions & Supply (C.D. Cal. 2010) 678 F.Supp.2d 1001, 1004 (applying California law).) Applicant Idemitsu at a minimum fails to establish...

Excerpt: ... Operating Surplus to Association members. (See Mot. at 4:17 ["This motion is to compel Association to return the excess funds immediately."]; id. at 6:25‐26 ["Plaintiff requests this Court to compel the Defendant to return the 2019 Operating Accounting Surplus immediately."].) However, Defendant shows that the 2019 operating surplus was returned to GTCA members on a pro rata basis on November 1, 2020 by the management company at the direction ...

Excerpt: ...aintiff has shown that the conditions of the stay, that the Chinese court resolve the dispute between Mr. Yao and Mr. Lui, have been met. (Wang Decl. 1:27 ‐ 2:2.) The Court's September 24, 2018 order granting Defendants' motion to dismiss or stay action provided that "[o]nce the Chinese court resolves the dispute between Mr. Yao and Mr. Lui, Mr. Yao can return to the court to lift the stay and seek any other appropriate remedies." Plaintiff bro...

Excerpt: ...laintiff filed an untimely motion to strike the demurrer, which is off calendar because Plaintiff did not serve and file the motion to strike at least 16 court days before the hearing, as required by Code of Civil Procedure section 1005(b). That Plaintiff is self- represented does not excuse these procedural deficiencies. "[T]he rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representati...

Excerpt: ...ervice of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Code Civ. Proc. section 473.5.) Defendant testifies that he "never received the Summons or Complaint" that was mailed to his former residenc...

Excerpt: ...ot to another state. (See generally California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) par. 3:450, at 3‐130 ["Venue rules designate a particular county (or counties) within California as the 'proper' place for trial of the action. Since jurisdiction is statewide, the venue rules serve to narrow geographically the place for trial."].) The proper motion to seek such transfer is a forum non conveniens motion. Venue is ...

Excerpt: ...tervenor has demonstrated the right to intervene in this action under Code of Civil Procedure section 387(d)(1)(B) ["The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of...

Excerpt: ...enied. Plaintiff fails to show that defendant Dealyze Inc., a Florida Corporation, cannot oppose this motion. Plaintiffs are not entitled to discretionary relief under CCP 473(b) because the dismissal was entered on August 28, 2018 and plaintiffs filed their motion for relief on November 30, 2020, which is more than six months after entry of the dismissal. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345 [six‐month period ma...

Excerpt: ... And Summons Of Complaint And To Dismiss For Lack Of Personal Jurisdiction Defendants Nicholas Nunno and Aion Robotics LLC's motion "to quash service and summons of complaint and to dismiss for lack of personal jurisdiction" is denied. The complaint for breach of contract, common counts and fraud alleges that defendants represented they had for sale security robots suitable to plaintiffs' needs, but failed to deliver despite a $60,000 payment. De...

Excerpt: ... Katherine Gallo, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 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 ...

Excerpt: ...tiff must present competent evidence showing imminent and irreparable harm, a likelihood of prevailing on the merits, and that the balance of equities and harms weighs in plaintiff's favor. (Code Civ. Proc. sec. 527(a) ["A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist...

Excerpt: ...The report and recommendation of the judge pro tem is adopted. Defendants shall within 15 days admit or deny the authenticity of the documents referenced in RFA 4 (#164‐ 198). Defendants shall not be obligated to admit or deny whether those documents are true or correct. The court considers the word genuine to be legally equivalent to the word authentic in this context. To the extent Defendants deny the authenticity of any of the referenced doc...

Excerpt: ...ive ruling was sent to the parties via e‐mail. The exhaustion of administrative remedies is a mandatory prerequisite to Plaintiff Nava's first cause of action for civil penalties pursuant to the Private Attorneys General Act (PAGA) and second cause of action for violation of the Fair Employment and Housing Act (FEHA). (Williams v. Superior Court (2017) 3 Cal.5th 531, 545 ["As a condition of suit, an aggrieved employee acting on behalf of the st...

Excerpt: ...pport apposite defenses. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [defenses must be pleaded with same detail as claims in complaint].) Some of the defenses appear totally irrelevant to this case, e.g., assumption of the risk. Defendant's general denials do not support the affirmative defenses. Affirmative defenses must be specially pleaded as they inject a new matter into the case. (See Code Civ. Proc. sec. 431.30(b)...

Excerpt: ...urth [no causation], and Fifth [causation] affirmative defenses because they fail to state facts sufficient to constitute a defense. (Code Civ. Proc. sec. 430.20(a).) Affirmative defenses inject new matters into the case, rather than simply being responsive to essential allegations of the complaint. (See Code Civ. Proc. sec. 431.30(b)(2); Walsh v. West Valley Mission Comm. Coll. Dist. (1998) 66 Cal.App.4th 1532, 1545‐1546; Houk v. Williams Bros...

Excerpt: ... sent to the parties via e‐mail. Defendant's motion to strike is denied. Defendant fails to show that plaintiff cannot base his claim for negligence per se, which is really an evidentiary presumption, on a violation of 17 CCR 30722 and that the allegations at paragraphs 37 through 39 are false, improper, or irrelevant within the meaning of CCP sec. 435. 17 CCR 30722(b) provides that "facilities" such as a bathroom "shall be kept in good repair,...

Excerpt: ...ng moved from 1:30pm to 9:30am tomorrow, Wednesday December 30, 2020. Plaintiff Macy's Inc.'s motion for leave to file first amended complaint is granted. Macy's seeks leave to add factual allegations that clarify and add detail to its claims, as well as to add additional causes of action. California courts have "a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding." (Berman v. Bromberg (1997) 56 C...

Excerpt: ...conceded. Plaintiff cannot establish the seventh cause of action for intentional infliction of emotional distress because emotional distress damages cannot be recovered in a survival action. (See Code Civ. Proc. sec. 377.34 ["In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained … and do ...

Excerpt: ...g the existence of an arbitration agreement. " 'In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration.'" (Rice v. Downs (2016) 248 Cal.App.4th 175, 185, quoting Weeks v. Crow (1980) 113 Cal.App.3d 350, 353.) Whether Defendants intend to raise defenses or file cross‐claims is of no moment. Here, Defendants' motion is...

Excerpt: ...tion in which Plaintiffs seek an injunction against enforcement of Code of Civil Procedure section 1989 on the ground that the statute violates the equal protection and due process clauses of the United States and California Constitutions. (FAC, 3, 12.) "Plaintiffs allege that section 1989 is unconstitutional on its face and particularly as applied to cases in which a party or an officer or employee of a party resides out of state and cannot be c...

Excerpt: ...ounty of San Francisco, the Fine Arts Museums of San Francisco, and Defendant COFAM. The complaint alleges claims for disability discrimination and related causes of action under FEHA arising out of Plaintiff's employment as a vendor and subsequently as an admission attendant and lead cashier for the DeYoung Museum and/or the Legion of Honor Museum. The motion is brought on the ground that Plaintiff does not allege that Defendant engaged in any m...

Excerpt: ...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 be signed via fax or consent ...

Excerpt: ...eve Stein, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 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 th...

Excerpt: ...ed defendant 14 months ago in this court for negligently procuring automobile coverage. Related insurance‐coverage litigation has been pending in Florida since 2014. Rather than move promptly for a stay here, defendant consumed this court's time and resources with two demurrers. Plaintiff's counsel insists he needs discovery right away, because memories are fading after seven years. But the Florida case has moved glacially due largely to plaint...

Excerpt: ...t and granting Defendants' motion to strike portions of the Third Amended Complaint is denied. [The Court's full tentative ruling was emailed to the parties.] As a result of the COVID-19 emergency, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," an...

Excerpt: ...on for a good faith determination upon a proper evidentiary showing. West Coast has not presented sufficient admissible evidence to enable the Court to determine "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability." (Tech‐Bilt, Inc. v., Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499.) "If 'there is no substantial evidence to support a critical assumption as to the nature and extent of a settli...

Excerpt: ...enied. Peretz & Associates represents the plaintiff, Gary Johnson, former co-chairman, director, and shareholder of the defendant company, Greenspan. Defendants seek to disqualify counsel solely based on their current representation of Khan, another former employee of defendants who for a period of time held the title of assistant general counsel and who has asserted his own claims against Greenspan, which this Court recently ordered to arbitrati...

Excerpt: ... power of attorney. "A power of attorney does not permit an agent to act as an attorney at law. If the rule were otherwise, the State Bar Act could be relegated to contempt by any layman who secured from his principal an ordinary power of attorney, for the purpose of representing him in pending litigation." (People By and Through Dept. of Public Works v. Malone (1965) 232 Cal.App.2d 531, 536‐537.) "By definition, one cannot appear in 'propria' ...

Excerpt: ...iling the answer as a result of the disruption in the operations of his law office caused by shelter‐in‐place orders during the pandemic readily constitutes excusable neglect that warrants discretionary relief under Code of Civil Procedure section 473(b). (See Elston v. City of Turlock (1985) 38 Cal.3d 227, 234 ["Where an attorney states that he was unaware of his duty to appear or answer because his employees misplaced papers or misinformed ...

Excerpt: ...rp. (Builder) is denied. Kohler's summary adjudication motion is granted in part and denied in part. Builder's opposition abandons its causes of action 1, 4, 5, 6, 7, 9 and 10. Summary adjudication is granted on them. Cause of action 3 is for implied contractual indemnity, which "is available when two parties in a contractual relationship were both responsible for injuring a third party" and there is no indemnity clause in their contract. (Prince...

Excerpt: ...y 8, 2021 at 9:30 a.m. in Department 302. C. Overra filed its motion in January 2020 for hearing on April 16, but the Covid‐19 pandemic intervened. C. Overra tried to get its motion re‐set. Plaintiff Dannie Salas resisted. On November 25, Judge Schulman granted C. Overra's ex parte motion to re‐set the motion for December 11 ‐ more than 30 days before the January 11, 2021 trial date. Salas was given until December 3 to file an opposition ...

Excerpt: ...be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." "[T]he Supreme Court has recognized that if a defendant promptly seeks relief . . . and there is no showing of prejudice, 'very slight evidence will be required to justify a court in setting aside . . . unless inexcusable neglect is cl...

Excerpt: ... $2,535.00, Memorandum Of Points And Authorities, Declaration Of David Davidson With Attached Exhibits, Declaration Of Eddie B. DennisRulings:Matter on the Discovery Calendar for Thursday, December 10, 2020, Line 5, 4‐ Cross‐Defendant/Cross‐Complaint Dan Phipps Architects PC's Motion To Compel Defendant/Cross‐Complaint Christopher Matthew Hunt's Further Responses To Request For Production Of Documents, Set One, And Request For Monetary Sa...

Excerpt: ...sideration as a motion for relief under Code of Civil Procedure section 473 and grants the motion. (See Austin v. Los Angeles Unified School District (2016) 222 Cal.App.4th 918, 930 [trial court had discretion to treat motion for reconsideration as motion for relief per section 473].) The Court vacates the order granting defendant's anti-SLAPP motion that was entered on September 17, 2020. Plaintiff sought relief within a reasonable time after se...

Excerpt: ...tiff's motion for new trial is denied. The Court recognizes that its summary judgment ruling erroneously concluded that the 3‐year statute of limitations for fraud under Code of Civil Procedure section 338 applied to the rescission claim. Plaintiff's motion for new trial correctly notes (for the first time) that a four‐year statute of limitations applies to a claim for rescission based on fraud. (See Code Civ. Proc. sec. 337(c).) Notwithstand...

Excerpt: ...RK ROCHA'S Motion To Strike Portions Of Plaintiff Trudy J. Walton First Amended Complaint Defendants' motion to strike portions of the First Amended Complaint is granted as to the punitive damages allegations in the second and third causes of action (FAC, pars. 52 and 62) and in the prayer for relief ((A)(5) and (C)(6).) Punitive damages cannot be recovered against a public entity such as the District. (Gov. Code sec. 818.) Further, the Court has...

Excerpt: ...fendant of the factual basis for the plaintiff's claim." (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1470.) The FAC did so. The FAC adequately pled breach of fiduciary duty. (Id. at 10:1‐11:6, 16:7‐18:6.) Defendants seem to argue that agency can never be created by contract, but the cases they cite do not so hold. (Indeed, no case defendants cite here involved a demurrer.) Defendants also argue that plaintiff has not "esta...

Excerpt: ...any of Pittsburg and TIG Insurance Company ("Intervenors") failed to sustain their initial burden pursuant to the factually devoid prong of Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. Plaintiffs' responses to Intervenors' Special Interrogatories include specific facts about the late Ronald Brown's exposure to asbestos‐containing products based on J&H Marine & Industrial Company's activities. Additionally, Intervenors' reliance on A...

Excerpt: ...ays after the date of service of the award. (Code Civ. Proc. sec. 1288.) Accordingly, the Court is required to confirm the award. (Code Civ. Proc. sec. 1286; Soni v. SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1085; Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8.) Rather than file a petition to vacate or correct the award, Respondents filed a "response" arguing that Petitioner lacked standing, and subsequently filed a mo...

Excerpt: ...orary 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 be signed via fax or co...

Excerpt: ...d without prejudice. Under California law, an internet service provider or social media company such as Twitter, Inc. may be compelled to disclose the identity of an anonymous or pseudonymous user when the party seeking the information satisfies two requirements: (1) the party must attempt to notify the anonymous user, and (2) the party must make a prima facie showing that a case for defamation exists. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 115...

Excerpt: ...nce of witnesses and the ends of justice will be promoted by the change of venue. (See Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643.) An extensive factual showing is necessary to satisfy this burden. The moving party must submit affidavits or declarations demonstrating (1) the names of the witnesses to be inconvenienced, (2) the nature of the testimony to be lost from each inconvenienced witness if venue is not transferred, (3) the reasons...

Excerpt: ...on 483.010, a prejudgment attachment may issue only if the claim sued upon is (1) a claim for money based upon a contract, express or implied; (2) of a "fixed or readily ascertainable amount" not less than $500; (3) either unsecured or secured by personal property, not real property (including fixtures); and (4) commercial in nature. The plaintiff must establish "the probable validity of the claim upon which the attachment is based." (CCP 484.090...

Excerpt: ...led and the motion complies with California Rules of Court, Rules 2.550 and 2.551. The Court finds that there exists an overriding interest that overcomes the right of public access to the portions of the records to be sealed; the overriding interest supports sealing those records; a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; and no less re...

Excerpt: ...ermit the arbitration to be vacated; CCP 1281.8(b) regards provisional remedies during an arbitration, not vacation. As to the stay: In late 2019, plaintiff sued defendants in a FEHA action (being arbitrated) and a wage and hour action. The latter invoked the Private Attorney General Act. Plaintiff stated: "On July 2, 2020, Plaintiff informed Defendants that he intended to bring his individual wage and hour claims into his arbitration matter." (7...

Excerpt: ...in litigation ‐ now dismissed ‐ with Bemdad Behnood. Behnood filed a costs memorandum, later clarifying that costs were only sought from EDG. EDG moved to strike or tax costs regarding depositions of Behnood, Evangelista and a PMK and expert fees of Eric Drabkin and Kevin Clarke. (Not. 2:9‐15.) Behnood made a $7,500 CCP 998 offer to EDG in October 2019 that was not accepted. In August 2020, EDG dismissed its claims against Behnood without p...

Excerpt: ...Defendant Sheikh Shoes, LLC's petition to compel arbitration of this sexual harassment case is denied on waiver grounds. Plaintiff Britani Davis sued 19 months ago, in March 2019. Since then, defendant has answered the complaint, responded to written discovery (including meeting and conferring and filing supplemental responses), made court appearances, filed case management statements and seen a co‐defendant move unsuccessfully to stay the liti...

Excerpt: ...he numbered counts in plaintiff Rabab Abdulhadi's first amended complaint (FAC). 1: Breach of Contract. Defendant's lead demurrer is that "Plaintiff's employment is governed by statute, not by contract." Thus, civil service employees like plaintiff "cannot state a cause of action for breach of contract." (See Kim v. Regents of University of California (2000) 80 Cal.Ap.4th 160, 164.) Plaintiff's opposition does not address this demurrer, so it is ...

Excerpt: ...imate body parts to third parties. Pacera was criminally charged and convicted. Lorenz sued Pacera, AT&T Mobility LLC New Cingular Wireless PCS, LLC and store manager Jeffrey Graham. With the exception of count 3, which is sustained with leave to amend, defendants' demurrers are overruled: 1: Invasion of Privacy. As defendants concede, "scope of employment is ordinarily" an issue "of fact," and the complaint pled that Pacera acted "in the scope o...

Excerpt: ...eral Settlement Terms." (Reznikov Decl. Para. 3 & Ex. A.) That document was signed by both parties, and contained all of the material terms of their settlement. It is not a mere "agreement to agree," as it stated that it "will be enforceable pursuant to Code of Civil Procedure section 664.6," and Plaintiff herself filed a notice of settlement of entire case on March 11, 2019. That the agreement was entered into by the City conditional upon subseq...

Excerpt: ...ion for reconsideration is continued to December 9, 2020. The court agrees with defendants that the order granting the anti‐SLAPP motion is a "judgment" and plaintiff can no longer move for reconsideration. (See Marshall v. Webster (2020) 54 Cal.App.5th 275, 281.) Nevertheless, plaintiff's motion was filed within a reasonable time after service of the order granting the anti‐SLAPP motion as unopposed, plaintiff provides a proposed opposition ...

Excerpt: ...vt. Code 12940(j)(1)): Defendants assert that plaintiff "fails to allege a 'concerted pattern' of harassment" and that "the alleged harassment consists of non-actionable personnel management actions." (Not. 1:9-12.) Plaintiff points to her complaint's dozen examples of harassment - enough to plead a pattern. (Id. at 5:24- 21:6.) In arguing that their conduct was "non-actionable," defendants raise factual disputes. But a demurrer admits the truth ...