Excerpt: ...ine of equitable tolling to avoid the statute of limitations. The statute of limitations for plaintiff's claim against defendant began to run on December 2, 2013, when National Union denied coverage. (See Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc. (2004) 115 Cal.App.4th 1145, 1164; FAC, pars. 17 - 18.) Plaintiff sued National Union for underinsured motorist coverage on April 16, 2014 (Deutsch Dec., par. 4; FAC par. 20) and furt...

Excerpt: ...that pleading." (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) It is not apparent from the face of the complaint or any matters that are judicially noticeable that Plaintiff did not "opt out" of the Beltran class, "object to the settlement, or seek to intervene in the suit." (See Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 574.) Thus, Defendant's argument that the Beltran settlement bars Plaintiff from pursuing this...

Excerpt: ...ntirety. KEF's status as a holder in due course under California's UCC section 9403(b) is a question of fact that cannot be decided on demurrer. KEF argues that the cross‐complaint is silent as to any fraud or wrongdoing committed by either KEF or its assignor, Oracle Credit. However, the court finds the cross‐complaint sufficiently alleges Oracle and Oracle Credit were acting as agents. (See cross‐ compl. Paras. 4, 18; see also Garton v. T...

Excerpt: ... 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 parties to the motion sign the stipulation,...

Excerpt: ... and for entry of judgment" is denied. "The one final judgment rule applies to judgments confirming arbitration awards." (Kaiser Foundation Health Plan, Inc. v. Sup. Ct. (2017) 13 Cal.App.5th 1125, 1139 (construing CCP 1283.4).) Even were that not so, I would exercise inherent powers to order business before the court to reach the same result. "[J]umping back and forth between the arbitration forum and the courthouse" to confirm "partial final" a...

Excerpt: ...a Seguras Compliance With Court Order And For Award Of Monetary, Evidentiary And Or Issue Sanctions Pro Tem Judge Jason Yurasek, 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...

Excerpt: ..., 2019. The Government Claims Act must be satisfied before suing the City, and compliance is treated as "an element of a valid cause of action." (Gov. Code 905, 945.4; Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) Plaintiff's lawyer, Thomas Tagliarini, filed a claim against the City on September 6, 2019. However, Tagliarini left blank the claim form's key section, which calls for "the facts and circumstances of the incident" and "why...

Excerpt: ...existence of a written agreement to arbitrate a controversy...the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists." (CCP 1281.2.) Plaintiff and defendant John Stewart Company entered into an arbitration agreement in January 2019. The agreement delegates to the arbitrator "disputes arising out of or relating to interpretation or application of t...

Excerpt: ... in the alternative summary adjudication, is denied. Triable issues of fact exist concerning notice of the association's August 13, 2019 general meeting and the bona fide number of association members. The parties dispute what notice was given and whether it was legally sufficient under Corporations Code 5511 and 5512. (See UMF Para. 12; Kwong Dec. Paras. 45‐46.) Additionally, the parties dispute the true number of association members. (UMF Par...

Excerpt: ...ion Of Defendants Pro Tem Judge David McDonald, 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 T...

Excerpt: ...artner, LLC's (Focus) first amended cross‐ complaint (FAAC) are overruled: Non‐Solicitation/Competition. The FACC's fourth and fifth causes of action are adequately pled. Whether Delaware or California law applies is to be litigated. A Delaware court appears to have deferred to California's courts on the issue. Interference Torts. The FACC's third cause of action (tortious interference with contract) requires no "independently wrongful" act. ...

Excerpt: ...dants Donna Noah, Bryan Campbell, And Ruben Barrenechea; Request For Monetary Sanctions: Pro Tem Judge Robert Kane, 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 s...

Excerpt: ...(Lee v. Fick (2006) 135 Cal.App.4th 89, 95.) He does so by demonstrating that the June 12, 2020 letter and June 13, 2020 e‐mail are protected by the anti‐SLAPP statute as statements made in connection with litigation pending or contemplated in good faith and under serious consideration. (A.F. Brown Electrical Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal.App.4th 1118, 1128; Flatley v Mauro (2006) 39 Cal.4th 299, 322 n.11.) The J...

Excerpt: ...." (Dec. p. 12; II RT 35-36, 39-41; Lui Rpt.) Dr. Sauer again pits his personal views against Dr. Lui's expert opinions. -in "the most serious issue," "prescribed Keppra to [the] patient with a history of depression and suicide." (Dec. p. 13: II RT 41-44; Lui Rpt.) Dr. Sauer claims a "difference of medical opinion" - an argument that would have had more force had he actually introduced expert opinions at hearing. -"failed to effectively communica...

Excerpt: ...he summary judgment order's findings ‐ reviewed again in considering this new trial motion ‐ are supported by the evidence cited. Plaintiff's spin on the facts simply repeats arguments already addressed. Second, plaintiff asserts for the first time that this is a "mixed‐motive" case. However, "[n]ew theories that could have been raised, but were not, is not one of the causes that permits a new trial." (Ins. Co. of State of Pa. v. Am. Safety...

Excerpt: ...on of affection." However, the FAC pleads that defendant and plaintiff were friends for 14 years (dating for five months of that) and that defendant owes for concert tickets, travel expenses, storage, failure to return a key and credit cards and the like. Defendant cites no authority for the notion that Civil Code Sec. 43.5 bars all suits between former friends who ever dated, however briefly. Defendant's other demurrer couples the heart‐balm s...

Excerpt: ...ke Punitive Damages Against Defendant Ahjae P. Holdman And Paragraph 18 Of Plaintiffs First Amended Complaint. Defendants City and County of San Francisco and Ahjae P. Holdman's motion to strike punitive damages is granted. In order to state a prima facie claim for punitive damages, a complaint must set forth the elements stated in Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud, or malice. (...

Excerpt: ...ained without leave to amend as to the "cause of action" for gross negligence. The law does not recognize an independent cause of action for gross negligence under the instant circumstances. (See Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 766, fn. 9 ["In reality, California does not recognize a distinct cause of action for 'gross negligence' independent of a statutory basis."].) Moreover, the gross negligence allegations are unn...

Excerpt: ...020, when the Notice of Renewal of Judgment arrived in the mail…[and] Until a couple of weeks ago, I did not know that Discover had a judgment against me. After we received the Notice of Renewal of Judgment during the week of June 22, 2020, my daughter obtained copies of documents in this case." (Wong Dec., pars. 2, 15). Plaintiff's documentary evidence, however, shows that in 2010, ten years ago, defendant was fully aware of this action, execu...

Excerpt: ...subject property was reported together with her personal accounts, her financial privacy may be jeopardized by these discovery requests. Given that defendant chose the manner of holding the accounts in question, her actions appear to have amounted to a waiver or at least weakened her claim of privacy. Defendant's privacy claim is subject to the familiar balancing test. Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1251 (2008); see Pioneer Ele...

Excerpt: ... to stay is granted as to John Keffer. Defendant's demurrer is overruled. The Court's full tentative ruling is 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," and click on the appropria...

Excerpt: ...on the Discovery Calendar for Wednesday, August 19, 2020, Line 3, Plaintiff Adam Fumarola's Motion To Compel Defendants To Answer Plaintiff'S Request For Form Interrogatories, Set One, Special Interrogatories,Set One, Request For Production, Set One And Request For Monetary Sanctions Against Defendants And/Or Their Attorneys In The Amount Of $2,100 (Part 2 Of 2 For Purposes Of Entry Of Tentative Ruling) Plaintiff's secondary authority is not to t...

Excerpt: ...issues to be considered on a motion for summary judgment. Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 750 ["The defendant must present facts to negate each claim as framed by the complaint or to establish a defense. Only then must the plaintiff demonstrate the existence of a triable, material issue of fact"]. The complaint alleges among other things that defendants were negligent by (1) not "warning Plaintiff of the hazardous...

Excerpt: ...iff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." Pacific Gas & Electric Co. v. Bear Stearns &...

Excerpt: ...r for punitive damages. The conspiracy allegations are proper as the Amended Complaint presently has Doe defendants. Lastly, plaintiff may seek emotional distress damages on the fraud claims. Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 799 ["We agree that in cases of intentional misrepresentation recovery for emotional distress need not be accompanied by physical injury."]; Civil Code sections 1709, 3333. A response to the amended complaint ...

Excerpt: ... Raj and Sonal Abhyanker Family Trust, and counsel for Plaintiffs through his law firm, LegalForce RAPC Worldwide P.C., and his or its beneficiaries, trustees, agents, employees, and those persons or entities in active concert or participation with any of them, from any further copyright infringement, disclosure, or publication of UpCounsel's copyrighted content or data, and from any interference with Defendants' contract with NewCo, is granted. ...

Excerpt: ...ct can be cured by amendment. The motion to strike the claim for setoff is granted without leave to amend. The relief should be sought in the answer. "We hold that a defendant may not obtain an award of affirmative relief against a plaintiff by way of section 431.70; rather, the defendant may only assert the setoff defensively to defeat the plaintiff's claim in whole or in part." Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2...

Excerpt: ...ion for summary judgment. (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 750 ["The defendant must present facts to negate each claim as framed by the complaint or to establish a defense. Only then must the plaintiff demonstrate the existence of a triable, material issue of fact."].) ISS has not met its initial burden because ISS's motion is only directed to the general negligence claim of direct liability. The complaint clearly...

Excerpt: ...or Production Of Documents, Set Three. Pro Tem Judge Maxwell Pritt, 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 be...

Excerpt: ...ely summary adjudication is denied. First, the motion is procedurally improper under Code of Civil Procedure § 437c(f)(1). Defendant's notice of motion does not seek to adjudicate or completely dispose of any "cause of action," "affirmative defense," "claim for damages," or "issue of duty." Second, and more importantly, defendant's argument fails as a matter of law. If an insurer makes voluntary LHWCA payments to an injured worker on behalf of t...

Excerpt: ...udge Roger Mead, 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 w...

Excerpt: ...ce Company's motion for disqualification of all counsel of record for defendant Scaffold Solutions Inc. is denied. Intervenor lacks standing to bring this motion. In California state court, the party seeking disqualification must have or have had an attorney‐client relationship with the "target" attorney. (See Marriage of Murchison (2016) 245 Cal.App.4th 847, 851; see Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356 [a...

Excerpt: ...Pro Tem Judge James Fleming, 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 ...

Excerpt: ...f Entry of Tentative Ruling). Breach of Implied Covenant. Sentinel argues that "plaintiff's bad faith claim is barred by the genuine dispute doctrine." (Memo. 16:13.) However, as Sentinel concedes, "the reasonableness of an insurer's claims-handling conduct is ordinarily a question of fact" and only "becomes a question of law where the evidence is undisputed and only one reasonable inference can be drawn from the evidence." (Id. at 17:2-4; quotin...

Excerpt: ...20. Knotel asserts that the workspace was substantially complete by then, Skillz that it was not. Skillz would enjoin Knotel from "using, disbursing, transferring dissipating or otherwise encumbering or alienating" a refundable deposit that Skillz made on the project. Skillz has not carried its burden to show that it would prevail at trial. (Husain v. McDonald's Corp. (2012) 205 Cal.App.4th 860, 866‐67.) Knotel adduces evidence that, during a M...

Excerpt: ...that the term "dominant motive" must be expressly pled. Demurrer overruled. 2. Plaintiff effectively concedes that he has not pled a landlord‐tenant relationship with defendant. Demurrer sustained with leave to amend. 3. An annual rent increase "in and of itself" ‐ without an addendum or attachment ‐ changes lease terms. (Civ. Code §827.) Thus, no addendum or attachment would be expected here. Demurrer overruled. 4. On its face, San Franci...

Excerpt: ...aintiff's property; therefore, plaintiff cannot establish its prima facie case for premises liability or negligence. In the commercial property context, absent an express covenant on the point or the landlord's voluntarily undertaking to protect a tenant's property, landlords do not owe a duty to safeguard tenant property from reasonably foreseeable criminal activity (burglary). (Royal Neckwear Co., Inc. v. Century City, Inc. (1988) 205 Cal.App.3...

Excerpt: ...Request For Sanctions. Defendant's motion to set aside the default entered against him on April 2, 2020 is granted. "Aside from statute, courts have an inherent power to correct judgments where there has been a clerical error by the clerk . . . There is no time limit within which this correction need be made . . . [T]he power to amend . . . extends . . . to cases where some provision of . . . an order or judgment as made or rendered was due to th...

Excerpt: ...nmao Chen's Motion For A Good Faith Settlement Determination. Defendants Magic Gourmet Trading, Inc., Fung Ping Chen Ng, Willy Ng, and Guanmao Chen's motion to determine good faith settlement is granted. The party asserting the lack of good faith has the burden of proof on that issue (Code Civ. Proc. § 877.6(d)). In this case, objector Koi Palace fails to meet its burden and the settlors have provided substantial evidence that the settlement is ...

Excerpt: ...Tem Judge Noah Lebowitz, 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 ...

Excerpt: ...s adopted. Plaintiff Diana Lyman's motion to quash defendant IDEO, LP's deposition subpoena to Marin Health is granted in part and denied in part. The sanctions requests are denied. No response to the subpoena has been provided, so no separate statement was required. (CRC 3.1345(b)(1).) Plaintiff does not dispute that she waived privacy rights to records pertinent to her claims. But it is unclear what non‐pertinent records, if any, exist. In an...

Excerpt: ...n and to stay proceedings is granted. Plaintiff is a consulting firm to professional athletes. When its president ‐ whose declaration shows he is a business sophisticate ‐ created its Square account online, he checked a box agreeing to Square's terms, including arbitration. (Nistad Dec. 6‐ 8; Whitaker Dec.) Plaintiff complains that the hyperlink "Terms" was not underlined (id. at 7), but an otherwise similar link was approved in Meyer v. Ub...

Excerpt: ...etting forth plainly and concisely all material facts which the moving party contends are undisputed…The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion." (CCP §437c(b)(1).) Here, movants concede they failed to comply with this mandatory requirement. (Rply. 2:8-10.) That movants served a purportedly identical motion five years ago cannot cure th...

Excerpt: ...art and denied in part. The motion has two grounds: First, it says San Francisco Municipal Railway (aka Muni) is not a proper defendant because it is a City department and thus lacks capacity to be sued. Plaintiff Valorie Lemley now agrees. Summary adjudication is granted on this issue. Second, the City says it is not liable on plaintiff's sole cause of action, general negligence, because its bus driver acted with appropriate care. It is undisput...

Excerpt: ...emporary 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...

Excerpt: ...ecure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.'" (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229; see also Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819 & 823‐824 [proprietor who has reason to believe, from observation or experience, that the conduct of another endangers an invitee has a duty to take reasona...

Excerpt: ...m with the aid of defendant, a Canadian bank. (Complaint, 10-14.) Defendant challenges California jurisdiction. "[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that 'minimum contacts' exist between defendant and the forum state to justify imposition of personal jurisdiction." (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) In this case, plaintiff fails to demonstra...

Excerpt: .../or vacate the dismissal of their complaint is granted. Plaintiffs move under the discretionary provisions of §473(b) or, in the alternative, its mandatory provisions. (Not. 2:3‐7.) The motion is granted under the former, so the latter need not be reached. Plaintiffs are not lawyers; any neglect in monitoring former counsel's discovery failures was excusable. (See Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740 ("a cli...

Excerpt: ...enal Code § 1334.2 is denied. Assuming arguendo that section 1334.2 applies, the subpoena Colone served on Respondent Github, Inc. is prohibited by the Stored Communications Act, and therefore must be quashed. The SCA provides that, subject to certain conditions and exceptions, "a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while ...

Excerpt: ...tly lay out the elements of a breach of contract claim. Defendant does not show that any of those allegations is "irrelevant, false, or improper" within the meaning of Code Civ. Proc. § 436. To the extent that defendant disagrees with the factual accuracy of those allegations, the proper vehicle for challenging them is a motion for summary judgment, not a motion to strike. As a result of the COVID-19 emergency, all attorneys and parties are requ...

Excerpt: ...ll 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 appe...

Excerpt: ...s's maximum recovery (Szamet Decl. 46‐58), the bases for the assessment are not clearly explained, and in some cases appear to be inconsistent or contradictory. For example, plaintiff asserts that through the data produced by defendant he determined the total tips received was $91,405.21 and contends that 60% of this amount, or $54,832.12, was unlawfully diverted from class members, but asserts without explanation that the tip deduction claim w...

Excerpt: ....) Klausner seeks to evict long-time tenants Aimee and Lorin Tsao. (Id. at 2.) Klausner's friend James Van Buskirk is another long-time tenant. In her trust, Klausner granted Van Buskirk a lifetime tenancy in return for monthly rent at half the market rate. (Collier Dec. Ex. 1.) Klausner is now trying to take the property off the rental market under the Ellis Act (Gov. Code §7060 et seq.). But the Act requires that all accommodations at a proper...

Excerpt: ...while on a 3rd Street sidewalk in October 2015. (Cmplt. p. 4.) To prevail on his dangerous condition of public property claim, James must prove that the City either created the condition or had actual or constructive notice of it in sufficient time to take protective measures. (Gov. Code §835.) No evidence indicates that anything the City did ‐ as opposed to, e.g., a traffic accident ‐ created the condition. Further, the City's 311 database ...

Excerpt: ...printers are used with the styrene‐based filaments. (See FAC 1‐2 [alleging that defendants' 3D printers are "intended to be used with filaments incorporating a styrene monomer"].) The truth of the allegation that 3D printers do emit or release toxins into the environment is not a question to be decided on a motion to strike. The court finds the FAC properly alleges Monoprice's 3D printers are subject to the warning requirements of Proposition...

Excerpt: ...d without leave to amend. The closed session of the May 28, 2020 meeting of a Subcommittee of the Committee of Bar Examiners concerning the grading of an individual's California bar examination that is the subject of the complaint is exempt from the open meeting requirements of the Bagley‐Keene Act. As the Court explained in its May 28, 2020 order denying plaintiff's application for a TRO and OSC re preliminary injunction, the Act shall not be ...

Excerpt: ...gations in the first cause of action for breach of contract are stricken. "Punitive or exemplary damages . . . are available only in actions for breach of an obligation not arising from contract. In the absence of an independent tort, punitive damages may not be awarded for breach of contract 'even where the defendant's conduct in breaching the contract was wilful, fraudulent, or malicious." (Cates Construction, Inc. v. Talbot Partners (1999) 21 ...

Excerpt: ... is clear that an owner/landlord and tenant in possession owe a duty to maintain their premises in a reasonably safe condition per Civil Code § 1714. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156 ["This duty to maintain land in one's possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control."]; Portillo v. Aiassa (1994) 27 Cal.App...

Excerpt: ...$116,394.04 in attorneys' fees and $7,426.51 in costs. This award represents a 0.7 negative multiplier on counsel's lodestar of $143,042.50 (Ms. Herrington) and $23,235.00 (Derby, McGuinness & Goldsmith, LLP). The Court finds that the amount awarded represents a reasonable amount in light of all of the facts and circumstances. The case did not require any briefing or hearing on pleading motions or motions for summary judgment/adjudication, involv...

Excerpt: ... Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) While the City is correct that it is immune from general claims of negligence, Plaintiff sufficiently states a cause of action for a dangerous condition of public property under Government Code § 835, including alleging that the City had actual or constructive notice of the unsafe condition but negligent failed to remedy or warn of it despite having sufficient time to take corrective ...

Excerpt: ... they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims." (Code Civ. Proc., § 386.) "Although section 386 has broadened the scope of the interpleader remedy, it is still required that the claimants seek the same thing, debt, or duty . . . the very rationale of interpleader compels the conclusion that section 386 does not allow the remedy where e...

Excerpt: ...man'S Oral Order During Ex Parte Hearing Held On 6/30/20). Defendant PG&E's demurrer to the fourth cause of action for wrongful termination (Labor Code § 1102.5) is overruled. Plaintiff alleges sufficient facts that defendant terminated him because he was poised to report defendant's safety violations. (See Second Amended Complaint, pars. 88‐108; Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 923‐924, 929 [Labor Code §...

Excerpt: ...ust clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred." (McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) Li contends that this claim is time-barred because plaintiff was on inquiry notice of Li's alleged negligence in May 2018 when plaint...

Excerpt: ...NAL, LTD., WILLIAM F. DOVE, WILLIAM FOX, J.R., WILLIAM HITSELBERGER, MICHAEL LEE, HERBERT LEMMER, ELLIOT OROL, WILLIAM ROBBIE, JAMES ROBERTS, STEVEN SCHUSTER, ROBERT SMITH, JAN VAN GORDER, AUSTIN YOUNG, III, MEGHAN ZEIGLER, GEORGE KARFUNKEL, LEAH KARFUNKEL, ESTATE OF MICHAEL KARFUNKEL, BARRY ZYSKIND, MICHAEL KARFUNKEL FAMILY 2005 TRUST, MICHAEL KARFUNKEL 2005 GRANTOR RETAINED, AMTRUST FINANCIAL SERVICES, INC.'s Application For Order To Show Cause...

Excerpt: ...compel arbitration and stay is granted. Dealer establishes that plaintiffs entered into binding arbitration agreements that cover both the Kia and Honda controversies. Plaintiffs' allegations in the Amended Complaint show that plaintiffs agreed to arbitrate the Kia controversy. (Amended Complaint, pars. 9, 10, 78 and Ex. A [MVRIC].) The Amended Complaint further shows that plaintiffs agreed to arbitrate the Honda controversy. (Amended Complaint, ...

Excerpt: ...mages is improper, as this is an action for damages arising out of the alleged professional negligence of a health care provider and Plaintiff did not seek an order under Code of Civil Procedure section 425.13 allowing the filing of an amended pleading that includes a claim for punitive damages. Contrary to Plaintiff's argument, section 425.13 is not inapplicable when a plaintiff seeks punitive damages for intentional torts allegedly committed by...

Excerpt: ...pt from the Federal Arbitration Act," because Uber drivers are a "class of workers engaged in foreign or interstate commerce." (9 USC §1.) However, well‐reasoned Northern California federal decisions have recently held that Uber and Lyft drivers are not exempt classes under 9 USC §1. (Capriole v. Uber Technologies, Inc. (N.D. Cal. 2020) WL 2563276; Rogers v. Lyft, Inc. (N.D. Cal. 2020) WL 1684151.) I adopt those decisions' analyses and conclu...

Excerpt: ...to compel defendants to: (1) immediately dismantle all eight (8) cameras and remove the video surveillance system from the Property, and further enjoin Defendants from installing any recording device of any kind, whether audio or visual, on the Property; (2) immediately discontinue any and all work performed on the Property until the Association has provided approval in accordance with the CC&Rs and Bylaws, including removal of the "false" job ca...

Excerpt: ...ing this writ of mandamus case, the parties agreed that plaintiffs may seek attorney fees and costs related to the first and second causes of action, which regarded the California Public Records Act. (See Govt. Code §6259(d).) However, the parties also agreed that plaintiffs are "not entitled" to attorney fees or costs related to the third, fourth and/or fifth causes of action, which regarded plaintiffs' "due process rights." Thus, to determine ...

Excerpt: ...osition Testimony And Production Of Documents By Plaintiff Peter Klapper. ***Unredacted***. Pro Tem Judge Rebecca Grey, 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 moti...

Excerpt: ...laintiff's argument that this demurrer is untimely. On February 26, 2020, this court took Defendants' demurrer off calendar for failure to comply with the meet and confer rules under the Code of Civ. Proc, and gave Defendants until March 26 to file their responsive pleadings. As a result of the COVID-19 pandemic, however, the Presiding Judge's General Order deemed the period from March 18 through June 1 to be court holidays for purposes of calcul...

Excerpt: ...as the victim of an intentional assault and sexual battery by Yonas Girme and Feleke Gebregiorgis, whom she alleges were employed by the moving defendants, and that she had reported a similar prior incident by one of them to defendants, but they failed to take any action. Civil Code section 3294(b) provides, "An employer shall not be liable for [punitive] damages . . . , based upon acts of an employee of the employer, unless the employer had adva...

Excerpt: ...LLC, T8 Urban Condo Owner, LLC and T8 Housing Partner, LP's motion for an order pursuant to Code of Civil Procedure § 638 for appointment of a referee to hear and determine all of the issues in the action, whether of fact or law, and to report a statement of decision is granted. (Code Civ. Proc. § 638(a); Cal. R. Ct. 3.901; O'Donoghue v. Superior Court (2013) 219 Cal.App.4th 245, 265-269 [trial court properly exercised its discretion in grantin...

Excerpt: ...o 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 parties to the mot...

Excerpt: ...h is included in the 2014 Transportation Agreement, expressly provides that the parties' agreement is subject to the FAA. (Seguerra Decl., 12, 14 & Ex. B (SCS 029) ["Except as provided in this Agreement, the Federal Arbitration Act shall govern the interpretation, enforcement, and all proceedings pursuant to this Agreement"].) Section 1 of the FAA provides that "nothing herein contained shall apply to contracts of employment of seamen, railroad e...

Excerpt: ...osition Subpoena For Production Of Business Records.(part 1 of 2) Pro Tem Judge Steven 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, t...

Excerpt: ... court's order, he pay plaintiff $1,000 and file an answer. If either condition is not complied with, the default will remain in effect, and plaintiff may proceed with the scheduled July 21 prove‐ up hearing. The process server swears that on January 15, 2020, he personally served Mr. James. (Klein Decl. 3.) Defendant claims that the process server left the papers with his eight‐year‐old daughter. (James Decl. 6.) The record shows that on F...

Excerpt: ...er 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 the same authority ...

Excerpt: ...his conversion cause of action is granted. On February 10, 2020 this court granted plaintiff's motion for first set of requests for admission to be deemed admitted. Defendants' counsel has not filed a noticed motion seeking to withdraw or amend any admissions. (See Code Civ. Proc., § 2033.300, subd. (a); see also § 2033.410, subd.(a) [Any matter admitted in response to a request for admission is conclusively established against the party making...

Excerpt: ...overruled. Demurrer 3. The plain language of plaintiff's owner move‐in (OMI) notice represents that there is a "30‐day" deadline for seeking "additional relocation costs." Plaintiff concedes that no such deadline exists and that the OMI notice's "phrasing" was "inartful." Defendants need not ultimately have been misled to make plaintiff's language unlawful. This demurrer is sustained. Demurrer 4. An OMI notice is required to provide a copy of...

Excerpt: ...0‐day time period of Code of Civil Procedure § 425.16(f) from service of the original complaint. Plaintiff served the original complaint on 1/31/20. The time period from 3/18/20 ‐ 6/1/20 was deemed a holiday by the Presiding Judge because of the COVID ‐19 pandemic and defendant's time to file this motion was tolled during that time. (4/30/20 Presiding Judge Order, pg. 2.) Based on the tolling, defendant timely filed this motion on 6/9/20. ...

Excerpt: ...ainst Defendant Encore Karaoke Lounge, Llc And Its Attorney, R. Wesley Pratt, Esq. Pro Tem Judge Scott Borrowman, 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 sig...

Excerpt: ... 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 be signed via fa...

Excerpt: ...Sutter Bay Medical Foundation's motion to strike punitive damages from the complaint is denied. Plaintiff alleges that she was the victim of an intentional assault and sexual battery by Yonas Girme and Feleke Gebregiorgis, whom she alleges were employed by the moving defendants, and that she had reported a similar prior incident by one of them to defendants, but they failed to take any action. Civil Code section 3294(b) provides, "An employer sha...

Excerpt: ...or Homeowner's Association's motion to quash is granted. On March 9, 2020, plaintiff added movant as Doe 1. The amendment was improper because the operative pleading (Fifth Amended Complaint) has no Doe allegations and plaintiff did not comply with Code of Civil Procedure § 474. "It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them." (Fireman's Fund Ins. Co. ...

Excerpt: ...nance is required, Plaintiffs complied with those requirements. Defendants' various attacks on the wording of the notice of termination of tenancy lack merit. (See Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1 [rejecting argument that owner was required to provide notification of tenant's re-rental rights against successor owners; "petitioners ask us to interpret the rent ordinance to require an obligation on the part of owners that its...

Excerpt: ...joyment of property; (2) that interference caused the plaintiff to suffer substantial actual damage; and (3) the interference was unreasonable. (Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 802, citing San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893.) In the Court's prior March 10, 2020 Order, plaintiff was granted leave to amend his complaint to allege that an ordinary person would reasonably be annoye...

Excerpt: ...fees, and fees for electronic filing or service in the total amount of $1,547.80. Plaintiff moves to tax $560 in filing and motion fees related to defendant's motions to compel arbitration, arguing that those costs do not relate to the non‐arbitrable claims on which the court granted judgment. Plaintiff's motion to tax is denied. As the prevailing party in this action, defendant is entitled as a matter of right to recover all of its costs in th...

Excerpt: ... cannot with reasonable diligence" be served in any specified manner other than publication then "[t]he court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed." (Code Civ. Proc. § 415.45(a)‐(b); see generally Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4t...

Excerpt: ...ts. "[I]f there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect." (Berg v. MTC Electronics Technologies (1998) 61 Cal.App.4th 349, 358.) The Exercise Agreement contains a clause stating there is "exclusive jurisdiction of any state or federal court sitting in the State of Delaware for the purpose of enforcing any provision of this Agreeme...

Excerpt: ...its prior order, the court struck the punitive damages allegations on the ground that they did not rise to the level of despicable conduct carried on by the defendant with a willful and conscious disregard for the rights or safety of others. Plaintiff now adduces additional facts that she contends establish that defendants were on notice for several years of dangerous conditions on its property, were aware that those conditions had caused numerou...

Excerpt: ...c agency or officer is properly brought "in the county in which the cause, or some part of the cause, arose." (Code Civ. Proc. § 393(b).) The cause of action normally arises wherever the petitioner would be injured by the state action complained of, e.g., where the plaintiff resides or does business. "A cause arises in the county where the effects of the administrative decision are felt, not where the agency signs the challenged order or takes t...

Excerpt: ...uled. Medical battery occurs when a physician performs a medical procedure or treatment without the patient's consent or performs a procedure that is substantially different from the one consented to. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239 [medical battery occurs where "a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained"]; Saxe...

Excerpt: ...ine, and fifteen. As noted in the companion demurrer, cross-complainants sufficiently allege alter ego liability against Litz and the cited agreements are sufficiently alleged. The demurrer to the tenth cause of action for breach of fiduciary duty is overruled. Litz fails to demonstrate that the claim needs to be brought as a derivative action. Paragraphs 169-179 allege that Litz is the managing member of the LLC and that he has been abusing that...

Excerpt: ....) "Defamation is the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage." (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.) Paragraphs 16‐17 of the amended complaint plead timely defamation causes of action. Plaintiff is correct that when pleading a defamation claim, less particularity is required where the defendant presumptively possess full inform...

Excerpt: ...nts and cross- complainants Ozyilmazs' motion to consolidate is granted. Litz v. Ozyilmaz, CGC-19-580935 and FFGRG v. Ozyilmaz, CGC-19-581427 are consolidated for all purposes. The court designates Litz v. Ozyilmaz, CGC-19-580935 as the lead case and all future filings shall be made under Litz v. Ozyilmaz, CGC-19-580935. When ruling on a motion to consolidate the court considers the common issues of law and fact, timeliness, complexity of the cas...

Excerpt: ..., 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 the same au...

Excerpt: ...ss, LLC.'s motion for summary judgment or alternatively summary adjudication is denied in its entirety. Plaintiff fails to maintain its initial burden of production. First, the Equipment Finance Agreement (par. 5) and Guarantee expressly state that Washington law governs the parties' relationship. While the agreements give the "secured party" the option of commencing a collection action in a non‐Washington court, they do not provide that non‐...

Excerpt: ...burden via the factually devoid prong of Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855. Plaintiffs' interrogatory responses restate their allegations and simply provide laundry lists of people and/or documents. (Andrews v. Foster Wheeler LLC (2006) 138 Cal. App. 4th 96, 107.) As to Plaintiffs' claim for false representation, Plaintiffs fail to provide specific evidence showing that a misrepresentation was made. As to Plaintiffs' ca...

Excerpt: ...laintiff leave to amend to plead a completely new cause of action in response to defendant's anti-SLAPP motion to strike. "[A] plaintiff cannot use an eleventh hour amendment to plead around a motion to strike under the anti-SLAPP statute." (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772-773 [allowing amendment in response to anti-SLAPP motion would undermine anti-SLAPP statute]; accord, Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280, 129...