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...

Excerpt: ...has an unconditional right to intervene in an action if, upon timely application, she "claims an interest relating to the property or transaction that is the subject of the action," (2) she "is so situated that the disposition of the action may impair or impede [her] ability to protect that interest," and (3) her interest is not "adequately represented by one or more of the existing parties." (Code Civ. Proc. § 387(d)(1); see Mylan Laboratories ...

Excerpt: ...rincipal place of business in San Francisco. (Rogers Dec., Ex. D; Ferguson v. Koerber (1924) 69 Cal.App. 47, 49; Brown v. Superior Court (1984) 37 Cal.3d 477, 482 ["Venue is determined based on the complaint on file at the time the motion to change venue is made."].) The fact that plaintiff dismissed Indiegogo, Inc. does not change the analysis. Subsequent amendments to the complaint or dismissals do not make a proper choice of venue suddenly imp...

Excerpt: ...a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Defendant filed this motion within a reasonable time. The court entered the default on February 20, 2020 and defendant filed this motion on March 11, 2020. Defendant establishes that the default was entered as the result of mistake, inadvertence, excusable n...

Excerpt: ...nt or alternatively, motion for summary adjudication, on Parkmerced Owner, LLC's cross‐complaint is denied in its entirety. In ruling on a summary adjudication motion, the court must view the evidence and all inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In this case, there are a triable issues of material fact as to whether the water that...

Excerpt: ...ases for venue under CCP §395.5. (See Mission Imports, Inc. vs. Sup. Ct. (1982) 31 Cal.3d 921.) In this case, defendant fails to meet its evidentiary burden. The evidence indicates that defendant was to pay plaintiff at plaintiff's San Francisco office and in fact made some payments there. (Michels Dec. 7, 9.) San Francisco is therefore a place of performance; the Harrison declaration does not demonstrate that performance on the six agreements w...

Excerpt: ... for negligence (Code Civ. Proc., § 430.10(e)), Plaintiff did not comply with the Government Claims Act. Plaintiff filed an Application for Leave to Present a Late Claim Against City and County of San Francisco, which this court denied on November 7, 2019. (In Re: Michael L. Beauchamp, CPF‐19‐516867.) In the order denying plaintiff's application, the court found that the alleged incident in the application occurred on October 11, 1990, over ...

Excerpt: ...aint is denied. Plaintiffs allege that on December 2015, they sustained personal injuries while using a portable butane stove that was purchased from a Macy's store in Stockton, California in the 1990s. (FAC pars. 18, 20.) Plaintiff allege that the stove was defectively designed and seek to state causes of action against Macy's for negligence, strict products liability and breach of warranty. They allege that Macy's was aware of the defective des...

Excerpt: ...2001) 25 Cal.4th 826 by demonstrating that Plaintiffs do not possess, and cannot reasonably obtain, evidence that Mr. Van Tassell was exposed to asbestos‐containing products or materials attributable to Defendant. Plaintiffs concede in their interrogatory responses that they "do not currently allege Plaintiff Fred Van Tassell suffered any asbestos exposures while serving in the Navy between the years 1960 to 1980." (Hoye Declaration, Ex. D at 4...

Excerpt: ...unitive damages against a corporate employer if the employee is sufficiently high in the corporation's decision-making hierarchy to be an 'officer, director or managing agent.'" (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 63.) According to the complaint, Mr. Aycan was "Managing Director of IDEO Products." (Compl. 3.) Punitive damages are recoverable for FEHA violations. (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal....

Excerpt: ...fendant's objections to the Gelbowitz declaration. Gelbowitz lays a foundation regarded the matters attested to and properly authenticates the business records attached to her declaration, which show that defendant is in default on her credit card account. (See Evid. Code §§ 1400, 1401 [authentication], 1271 [business records exception to hearsay rule]; Unifund CCR, LLC v. Dear (2015) 243 Cal.App.4th Supp. 1, 7‐9 [trial court has broad discre...

Excerpt: ...es Pursuant To CCP 1030. Defendant the Regents of the University of California's motion to require undertaking pursuant to Code of Civil Procedure § 1030 is granted. Plaintiff shall post $30,000 as a reasonable bond by July 5, 2020. Plaintiff resides out of state (Alabama) and defendant demonstrates that "there is a reasonable possibility that the moving defendant will obtain judgment in the action." (Yao v. Superior Court (2002) 104 Cal.App.4th...

Excerpt: ...arst Holdings, Inc., and Bill Flemion's motion to change venue to San Luis Obispo based upon the convenience of witnesses and ends of justice is granted. (See Code Civ. Proc. § 397(c).) Defendants shall remit all required transfer fees and costs forthwith. The convenience of witnesses and ends of justice mandate the transfer of this action to San Luis Obispo. This case involves an approximately 30‐year campaign of alleged harassment and bigotr...

Excerpt: ...ntative ruling: Defendant David King-Stephens' motion for summary judgment or, in the alternative, summary adjudication of issues is denied in its entirety. Dr. King- Stephens submitted sufficient admissible evidence to satisfy his summary burden of showing that no later than October 19, 2015 both plaintiffs suspected, and a reasonable person would have suspected, that Dr. King-Stephens' refusal earlier that year to order a brain scan (MRI) for M...

Excerpt: ...t's burden is to show that "that one or more elements of the cause of action cannot be established.…" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The defendant also "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Id.) Defendant fails to meet this burden. First, Defendant fails to show that there is no triable issue as to the element of breach. ...

Excerpt: ...cle collision after consuming alcohol at a bar and closing her eyes while driving. Details are disputed, but those are for trial resolution. In Peterson v. Sup. Ct. (1982) 31 Cal.3d 147, the California Supreme Court held that punitive damages are recoverable from an intoxicated driver who causes personal injuries. Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82 is a court of appeal opinion that pre‐dates Peterson and is not to the contrary in any ev...

Excerpt: ...lly's first amended complaint (FAC) is overruled in its entirety. Liberally construing the complaint, plaintiff adequately pleads a cause of action for breach of an express or implied‐in‐fact contract. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 ["To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the pl...

Excerpt: ...il Procedure § 1085 is sustained without leave to amend. Respondents imposed a 60‐day suspension of petitioner's County Adult Assistance Programs ("CAAP") benefits as a sanction because they concluded that petitioner underreported his income for a second time without cause. Petitioner's second cause of action alleges that CAAP Eligibility Manual § 94‐21 is contrary to Welfare & Institution Code § 17001.5(a) and San Francisco Administrative...

Excerpt: ... motion to dismiss based on forum non conveniens is denied. A corporate defendant's principal place of business is presumptively a convenient forum. (National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal.App.4th 902, 917.) Uber, a California corporate resident, has failed to show that equity strongly favors requiring plaintiff, a California resident, to litigate her claims in New York. Where the plaintiff is a California resident, th...

Excerpt: ...cretionary and permits transfer from one proper county to another proper county when "the convenience of witnesses and the ends of justice would be promoted by the change." The burden is on the party seeking a change of venue to prove that both the convenience of witnesses and the ends of justice would be promoted by the change. (Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 477.) In this professional negligence action, Plai...

Excerpt: ...t the statutes that Plaintiff cites apply only when a petition to compel arbitration is pending and/or arbitration is ordered. (See, e.g., Code Civ. Proc. §§ 1281.4, 1281.2.) However, even where no order or application for an order compelling arbitration has been made, “it is within the implicit power of the court to stay the legal proceedings while arbitration is proceeding.” (Seidman & Seidman v. Wolfson (1975) 50 Cal.App.3d 826, 834.) He...

Excerpt: ...tual provision permitting the recovery of attorneys' fees. (Cross‐Compl., Ex. A.) "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties?" (Code Civ. Proc. § 1021.) Without an attorney's fees clause in the Release, the parties are not entitled to recover attorneys' fees and costs as damages. (Navell...

Excerpt: ...t; Memorandum Of Points And Authorities Plaintiffs' application for determination of good faith settlement is granted. Plaintiffs show that defendants Monique Smith and Lynnique Smith have tendered $15,000, the limits of their available liability insurance coverage, and their declarations show that they have very modest assets. (Lynnique Smith Decl. 1, 4; Monique C. Morris-Smith Decl. 1, 6; see Dole Food Co., Inc. v. Superior Court (2015) 242 Cal...

Excerpt: ... not show that Plaintiff's allegations fail to rise to the requisite level of fraud, malice, or oppression. "[W]rongful termination, without more, will not sustain a finding of malice or oppression." (Scott v. Phoenix Sch., Inc. (2009) 175 Cal.App.4th 702, 717 [holding punitive damages are not allowed where the "only evidence of wrongful conduct directed toward [the employee] was her termination for an improper reason."].) Here, however, Plaintif...

Excerpt: ...e of material fact regarding what services the assignor (Galca/TSPS) provided to defendant and what sum is owed. Plaintiff as assignee alleges that assignor placed temporary employees with defendant and seeks to collect $163,485.17 plus pre‐judgment interest for services rendered. (Complaint, par. 9.) Mr. Deluca of plaintiff assignee declares that assignor provided "personnel services" to defendant. (Deluca Dec., par. 16.) Defendant presents ev...

Excerpt: ... OSC re preliminary injunction is granted. Raj Abhyanker, Trustee of the Raj and Sonal Abhyanker Family Trust, and counsel for plaintiffs through his law firm, LegalForce RABC, and his or its trustees, agents, employees and those persons or entities in active concert or participation with any of them are restrained and enjoined from disclosing on your personal internet blog or by any other means to any third‐party the confidential documents or ...

Excerpt: ...st set forth the elements stated in the general punitive damage statute, Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ. Code § 32...

Excerpt: ...ho 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 as a Superior Court Judge. If a ...

Excerpt: ...fornia 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 as a Superior ...

Excerpt: ... And Cross Complainants LIBERTY MUTUAL INSURANCE COMPANY, and THE OHIO CASUALTY INSURANCE COMPANY's Motion For An Order Of Contempt And Imposition Of All Appropriate Sanctions Against Subpoenaed Nonparty Law Firms Re Failure To Comply With December 23, 2019 Order Defendant and Cross‐ Complainant The Ohio Casualty Company's motion for an order of contempt and imposition of all appropriate sanctions against subpoenaed nonparty law firms re failur...

Excerpt: ... 2018) 2018 WL 2298431 at *8 [declining to award multiplier in Song-Beverly Act case where, among other things, case did not present novel or difficult questions of law or fact, there was no evidence that the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award was outweighed by the other factors]; Steel v. GMC (D.N.J. 1995) 912 F.Supp. 724, 746 ["the issues in lemon law litigation are n...

Excerpt: ...redential to act as a substitute teacher. EA's statements are admissible as a statement against interest because she was unavailable (EA asserted her Fifth Amendment privilege and refused to testify (RT 42:8-9)) and the statements opened her up to ridicule and public disgrace. (Evid. Code § 1230; see also RT 25:6-14 [Dr. Thompson's testimony regarding EA's statements].) Respondent found that EA, an uncredentialed person, worked 27 days at six di...

Excerpt: ...intiffs Employment Records; Request For Sanctions Against Defendant And Its Attorneys Of Record In The Amount Of 2750.00; Memorandum Of Points And Authorities; Declaration Of John A. Kawai 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 ...

Excerpt: ...ach of contract claim. In a 'mixed' action, in which some of the claims are at least potentially covered and the others are not, the insurer has a duty to defend as to the claims that are at least potentially covered?." (Buss v. Sup. Ct. (1997) 16 Cal.4th 35, 47.) It is not clear from the face of the complaint that none of the claims in the underlying action were covered by the insurance policies, and thus the cause of action is not susceptible t...

Excerpt: ...latto pleads that she and Betabrand were "fiduciaries" because they "were in a joint venture." (FAC 19:18‐19.) However, as Betabrand notes, and Flatto concedes, an essential element of a joint venture is that the venturers share losses, and Flatto does not so plead. (Memo. 4:9‐ 14, citing Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, 1297; Opp. 9:8‐14, citing CACI 3712.) Based on her repeated failures to plead a fiduciary duty cause ...

Excerpt: ...ier of fact could conclude that the parties orally agreed to the sale of stock on August 5, 2017. Jose Suarez so asserts. (Suarez Dec. 17; Kneafsey Dec. Ex. 32 (Suarez Dep. 102, 134).) And O'Brien sent August 5 and 17 e‐ mails stating that the parties "agreed" to the contract. (Id. at Exs. 19, 21.) O'Brien fails to show that the August 19, 2017 letter modified or superseded the oral agreement. (Fibreboard Paper Products Corp. v East Bay Union o...

Excerpt: ...ary Sanctions The Pro Tem Judge has issued the following tentative ruling: Special Interrogatories #1‐4: Granted. All objections are overruled. Defendant to serve verified answers no later than March 27, 2020. Special Interrogatories #5: All objections are overruled. Current and former employees of defendant are potential percipient witnesses and their identities and locations are discoverable under CCP §2017.010. However, Plaintiff has agreed...

Excerpt: ...ies, Inc. ("TCI")'s motion to quash for lack of personal jurisdiction is granted. "When a nonresident defendant challenges personal jurisdiction, the plaintiff must prove, by a preponderance of the evidence, the factual basis justifying the exercise of jurisdiction . . . The plaintiff must do more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisd...

Excerpt: ...miss Action Against Washington Street Homeowners Association For Failure To Timely Serve It Within (3) Years (Tentative Ruling 1 of 2) Specially appearing defendants' motion to quash service of summons and to dismiss action against Washington Street Homeowners Association is granted. The summons served on Leslie Zimmerman, Daniel Mulderry, and Mark A. Hagopian purported to serve those persons as individuals, yet they are not named as defendants, ...

Excerpt: ...s motion to compel arbitration and to stay the action is granted. The FAA applies to the parties' arbitration agreements. Page two of each arbitration agreement states "The arbitration provisions of this Agreement shall be governed by the Federal Arbitration Act." (Salazar Decl., Exs. A, B, & D.) Plaintiffs' UCL claim is arbitrable as it seeks private, not public, relief. The complaint alleges acts of unfair competition against plaintiffs alone. ...

Excerpt: ...IAU, ANTHONY AMBURN's Motion For Protective Order And For Appointment Of Discovery Referee And Request For Monetary Sanctions Against Plaintiff Jonathan Korzekwa And His Counsel Joseph S. May And The Law Office Of Joseph S. May By Defendant Encore Karaoke Lounge, Llc 1. Notice Of Motion And Motion For Protective Order And For Appointment Of Discovery Referee And Request For Monetary Sanctions Against Plaintiff Jonathan Korzekwa And His Counsel Jo...

Excerpt: ....) The court takes that allegation as true. (See CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635 ["A demurrer is treated as admitting all material facts properly pleaded"].) While the complaint also pleads similar allegations against the San Francisco Unified School District at 4, a plaintiff can plead alternative theories of liability. (See Adams v. Paul (1995) 11 Cal.4th 583, 593 [when a pleader is in doubt about what act...

Excerpt: ...ng On 1/31/20) Defendant Kitsia Guardado's motion to vacate the default of May 5, 2008 and default judgment of May 8, 2008 is denied. Defendant fails to maintain her burden under any of the cited bases for relief. Defendant is not entitled to relief under Code of Civil Procedure § 473.5 because the motion is untimely. Code of Civil Procedure § 473.5(a) provides: "The notice of motion shall be served and filed within a reasonable time, but in no...

Excerpt: ...en 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 the...

Excerpt: ...he complaint does not allege facts sufficient to warrant the prayer. In order to state a prima facie claim for punitive damages, a complaint must set forth the elements stated in the general punitive damage statute, Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or desp...

Excerpt: ...s interest and to execute a deed of trust as to the property at 819 Ellis Street, and are prohibited from classifying their drivers as independent contractors. Rather than seek judgment in the form of a deed of trust on the property, plaintiff seeks judgment in the form of a court ordered sale, which goes beyond what was agreed to. "Although a judge hearing a [Code of Civil Procedure] section 664.6 motion may receive evidence, determine disputed ...

Excerpt: ...aragraph 25 of the fourth amended complaint to add factual allegations regarding an incident in 2015 in which he was allegedly threatened with a baseball by a coworker is granted as unopposed. Plaintiff has leave to file an amendment to the fourth amended complaint adding those allegations. The motion is otherwise denied. This action was originally filed on September 26, 2013, a fourth amended complaint was filed on May 6, 2019, and the court dec...

Excerpt: ...ve this court gave on September 11, 2019 is rejected. Defendant is correct that, in general, leave to amend by a court after sustaining a demurrer is limited to the cause of action at issue. (See People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785‐ 86.) However, California has a liberal policy of allowing amendments to pleadings, and the court therefore will address the merits. Plaintiff adequately alleges a cl...

Excerpt: ...nd His Counsel, Robert Abel, Pursuant To Code Of Civil Procedure Section 128.7. Defendants Uber Technologies, Raiser, and Raiser‐CA's motion for sanctions against Plaintiff pursuant to Code of Civ. Proc. § 128.7 is denied. Under section 128.7, an attorney who "present[s] to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper" certifies that it has legal ...

Excerpt: ...nt, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) In this case, petitioner has not met her burden and the court concludes that respondent did not abuse its discretion...

Excerpt: ... medical treatment in 2016 with respect to artificial insemination through in vitro fertilization. Defendant The Regents of the University of California (sued as UCSF Medical Center) filed a demurrer to the complaints and a motion to strike the prayer for punitive damages in each of those actions. Plaintiff did not file or serve a timely opposition to any of the demurrers or motions. Instead, Plaintiff untimely lodged with the court (but did not ...

Excerpt: ...edical treatment in 2016 with respect to artificial insemination through in vitro fertilization. Defendant The Regents of the University of California (sued as UCSF Medical Center) filed a demurrer to the complaints and a motion to strike the prayer for punitive damages in each of those actions. Plaintiff did not file or serve a timely opposition to any of the demurrers or motions. Instead, Plaintiff untimely lodged with the court (but did not fi...

Excerpt: ...s: 1: Cross‐defendants offer no authority for the notion that their second amended complaint's (SAC) characterization of the Church's status binds cross‐ complainants at the pleading stage. 2: The FACC pleads allegations against the individual cross‐ defendants. (Id. at 4, 6‐7, 20, 23‐24, 16, 29‐30, 33, 35, 39, 41‐44, 46, 52‐54, 56‐57.) 3: Whether the FACC's requests for declaratory relief (a) replicate the SAC's and/or (b) addr...

Excerpt: ...v. State of California (1978) 21 Cal. 3d 313), but concedes that Addison applies only "when the plaintiff has alternate legal remedies." Here, plaintiff pleads negligence, as he did in a prior case in Florida, where jurisdiction was found to be lacking. Plaintiff asserts that "the option" of suing in Florida or California created "alternate legal remedies," but cites no authority for that notion. Instead, the case law uses "remedy" in the usual s...

Excerpt: ...ourts of Appeal in multiple appeals, including three in the First Appellate District (Howard Jarvis Taxpayers Assn. v. City and County of San Francisco, No. A157983, City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, No. A158645, and Jobs & Housing Coalition v. City of Oakland, A158977) and two related appeals in the Fifth Appellate District (City of Fresno v. Fresno Building Healthy Communities and Fresno ...

Excerpt: ...the nature of the claimed violation of Health and Safety Code section 1317. (See, e.g., Jackson v. East Bay Hospital (9th Cir. 2001) 246 F.3d 1248, 1259‐1260 [the duty of reasonable care under § 1317(c) applies in two situations, one of which is when "the hospital does not provide a medical screening, examination, or evaluation to determine if the patient presents an emergency medical condition," which "constitutes 'a refusal to render emergen...

Excerpt: ...s are time‐barred because plaintiff failed to file within one year from the date of her right‐to‐sue notice from the DFEH, as required by Gov. Code § 12965(b). The City is wrong. Plaintiff's right to sue letter was issued July 13, 2018. (Compl. 4, Ex. A.) The one‐year period ended on July 13, 2019, which was a Saturday. Plaintiff timely filed this complaint on the next business day, Monday, July 15, 2019. The complaint was timely under C...

Excerpt: ...es' motion to strike Defendant's costs is granted. The $405.15 claimed by Defendant PetSmart is not adequately supported after a timely challenge by Ms. Karnazes. PetSmart claims $405.15 in costs for "transmitting, filing, and serving of record, briefs, and other papers." "[I]f the items [in a costs memorandum] are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs." (Sanford v. Rasnick (201...

Excerpt: ...ed this motion on December 26, 2019. 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. § 583.420(a).) None of the statutory grounds is met here. Claimant's purported "understanding ...

Excerpt: ...enied. Plaintiff's complaint seeks both individualized and representative relief. (See Complaint, 23, 26, 31, 44, 48, 59.) Under Esparza v. KS Indus., L.P. (2017) 13 Cal.App.5th 1228, individual claims are arbitrable while the representative ones are not. Esparza also indicates that a plaintiff can avoid arbitration if she unambiguously states her intention to pursue only the representative claims. (See id. at 1247 ["if Employee intends to (1) li...

Excerpt: ...dants' responses to Form Interrogatory 15.1 are factually devoid. (Pl's. MPA 4:6‐10.) Since Plaintiff filed this motion, however, both defendants amended their responses to Form Interrogatory 15.1; thus, Plaintiff's motion is moot. (Gilardi Decl., Ex. A; Cruz Dec., Ex. G.) (See Code of Civ. Proc. § 2030.310(a) ["Without leave of court, a party may serve an amended answer to any interrogatory that contains information subsequently discovered, i...

Excerpt: ...to show that the 5‐year period for a mandatory dismissal has run. The 5‐year period was tolled pursuant to Code of Civil Procedure §§ 583.340(b) and (c) because the action was stayed and/or it was "impossible, impracticable, or futile" to prosecute this action while the matter was sent to arbitration. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1091‐1092 [a stay of proceedings tolls the five‐year period under § ...

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 auth...

Excerpt: ...pursuant to Labor Code section 2699(g) of a settlement providing for resolution of her claim under PAGA in exchange for payment of $2,500 to the LWDA. The confidential settlement agreement provides for a release of plaintiff's claims only. The court notes that the parties' proposed settlement is anomalous, because there is no such thing as an "individual" PAGA claim. The Private Attorneys General Act of 2004 authorizes an aggrieved employee, acti...

Excerpt: ...mployment Arbitration Rules. AAA Rule 6 clearly and unmistakably provides that the arbitrator determines "the existence, scope or validity of the arbitration agreement." Based on that delegation clause, the arbitrator will decide whether the parties' underlying dispute is subject to arbitration. (See Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 557 ["The Contract provides that if a contested claim is not settled within the con...

Excerpt: ...action for breach of warranty in Geo Cell Solutions, Inc.'s second amended cross‐complaint is denied. The court rejects Maxxon's statute of limitations argument. The 4‐year statute of limitations of Code of Civil Procedure, § 337, which can implicate the discovery rule, applies to the cross‐complaint. (Carrier Corp. v. Detrex Corp. (1992) 4 Cal.App.4th 1522, 1529 ["We therefore hold that in a case involving indemnification for damages unde...

Excerpt: ...on was brought against defendant in New York federal district court (Dennis). That putative class action sought relief on behalf of Mr. Dennis as well as "all others similarly situated." (Defendant's Request for Judicial Notice, Ex.1.) The Dennis action settled and the court dismissed it with prejudice. Defendant does not supply the settlement agreement, and there is no indication in the Stipulation and Voluntary Dismissal with Prejudice that the...

Excerpt: ...ontest Platitiff Alicia Gonzaless Application For Good Faith Determination And Request For Continuance Defendants Boanerges Miranda and Horlino Tabios' motion to contest good faith settlement is granted. While the party asserting the lack of good faith has the burden on that issue (Code Civ. Proc. § 877.6(d)), the settlors must provide the court with a sufficient evidentiary basis upon which to make a good faith determination. (See Code Civ. Pro...

Excerpt: ... Of Appeals. Plaintiff Armando Reyes' motion for order to temporarily stay all legal proceedings pending the resolution of his "emergency appeal" to the Court of Appeal is denied. Plaintiff has filed notices of appeal from orders dated December 23, 2019 and January 3, 2020 denying his motions to seal his birth date and medical records. However, those orders are not appealable, and Plaintiff has not acted diligently to file a petition for writ of ...

Excerpt: ... The exclusive concurrent jurisdiction rule provides: "where two (or more) courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all others, thus rendering 'concurrent' jurisdiction 'exclusive' with the first court." (Franklin & Franklin v. 7‐Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175.) The rule of exclusive concurrent jurisdiction "i...

Excerpt: ...es At Deposition, And For Sanctions: 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 be...

Excerpt: ...Cal.App.4th 968, 994.) Defendant fails to show that Plaintiff is unable to state a claim under § 17200. Defendant does not show that Plaintiff is unable to state a claim for § 17200 relief under any theory. Defendant's demurrer challenges Plaintiff's ability to allege that Defendant's actions were "unlawful." However, that is not the only basis of support for a § 17200 claim in the complaint. Plaintiff also alleges that "Gap committed 'unfair'...

Excerpt: ...e delegation clause. (Newman Decl., Ex. A [Employment and Confidential Information Agreement, 7].) The agreement states "an arbitrator, not the courts, shall decide any and all issues of arbitrability, including but not limited to the threshold issue of arbitrability, whether arbitration is appropriate, or whether the arbitrator has jurisdiction to decide the underlying dispute." (Id. 7a.) Such a clause is enforceable. (E.g., Aanderud v. Superior...

Excerpt: ... and Hylen's opposition fails to address plaintiff's arguments. The court further notes that Hylen cannot appear for the corporations because he is not an attorney. (See Merco Constr. Engineers, Inc. v. Municipal Crt. (1978) 21 Cal.3d 724, 727.) The court previously gave Hylen an opportunity to obtain counsel for the entities but he failed to do so. "[W]hen a corporation sells or transfers all of its assets to another corporation constituting its...

Excerpt: ...), Special Interrogatories (Set One), Requests For Production Of Documents (Set One), And Requests For Admission, (Set One) And For Sanctions. The report and recommendation of the judge pro tem is adopted. Plaintiff's motion to compel defendants' responses to form interrogatories (set one), special interrogatories (set one), and requests for admissions (set one) and for sanctions is granted. Defendants shall provide code-compliant, verified respo...

Excerpt: ...m merely because she has included a photo of one of the ads at issue in this litigation as an exhibit to her complaint. Defendant provides no authority that an individual may no longer seek an injunction on a claim for violation of the right to publicity under such circumstances. Defendant's motion to strike punitive damages is denied, as the complaint sufficiently alleges malice. "[W]here it is proven . . . that the defendant has been guilty of ...

Excerpt: ...summary judgment is granted. Even if plaintiff could show that she was subjected to an adverse employment action that materially affected the terms and conditions of her employment and a causal link existed between the protected activity and the employer's action, Plaintiff cannot establish any of her causes of action because the defendant had a legitimate reason to extend plaintiff's probation and transfer her. Plaintiff fails to present substan...

Excerpt: ...ent is denied on the ground that it has not met its initial burden of production. (Code Civ. Proc., § 437c, subd. (c); see Minish v. Hanuman Fellowship (2013) 154 Cal.App.4th 437, 444.) Compass's alternative motion for summary adjudication on the three causes of action is also denied. Summary adjudication of the breach of contract cause of action is denied because triable issues of fact exist as to whether Compass employees who were provided wit...

Excerpt: ...posed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Plaintiff testified that Meeks Lumber trucks delivered materials including joint compound to his jobsites in the 1970s, including a tavern/motel in Grenada, California, a Yreka High School project, a tract home project off Turre Street and the Camel tract project off Oberlin Street. (Darrell Grace Deposit...

Excerpt: ...alifornia 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 as a Superi...

Excerpt: ...b provides that a defendant must file a motion to transfer venue "at the time he or she answers, demurs, or moves to strike, or . . . without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint?." Section 396b "represents an explicit codification of the general 'waivability' of venue defects, providing that, notwithstanding the governing venue provisions, an action may generally be tried 'in...

Excerpt: ...Sections 395.5, 396b And 397 Defendant Pinnacle International's motion to change venue is denied. On a motion to change venue, the burden is on the moving party to show (1) that venue is proper in a different county than the one in which the lawsuit was filed and (2) that venue is improper in the current county under any applicable theory. (La Mirada Comm. Hosp. v. Sup. Ct. (1967) 249 Cal.App.2d 39, 42.) Defendant fails to show that venue is impr...

Excerpt: ...nt Stephens Institute's motion for summary judgment and/or summary adjudication is denied in its entirety. The doctrine of contractual assumption of the risk/release does not bar plaintiff's claims. There exists a triable issue of material fact regarding whether defendant's conduct was grossly negligent. A release does not apply to a claim for gross negligence. (See Rosencrans v. Dover Images., Ltd. (2011) 192 Cal.App.4th 1072, 1081.) While there...

Excerpt: ...is denied. Summary adjudication of the third cause of action against Dr. George is denied. In Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, the court expressly rejected the examining physician's contention that he could not be held liable for the treating physician's subsequent failure to obtain informed consent because he neither treated nor operated on the patient, concluding that "the jury could reasonably conclude that [the examining ph...

Excerpt: ...The claims are pleaded with the requisite specificity. (Amended Complaint, 41-46.) The cited representations are actionable even if they are characterized as "opinion" because defendants had superior knowledge on the topic. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 892 ["it is well settled that an opinion may be actionable when it is made by a party who 'possess[es] superior knowledge.'"]; Walker v. Signal Companies, Inc....

Excerpt: ...ANTHONY AMBURN Motion For Protective Order And For Appointment Of Discovery Referee And Request For Monetary Sanctions Against Plaintiff Jonathan Korzekwa And His Counsel Joseph S. May And The Law Office Of Joseph S. May By Defendant Encore Karaoke Lounge, LLC. 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....

Excerpt: ...e 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 as a Sup...

Excerpt: ...ive, Summary Adjudication. Defendants Maureen Rowland, Christine Rowland and Michael Rowland's summary judgment motion in this unlawful detainer Ellis Act case is denied. Defendants' stated ground for summary judgment is that "Plaintiff's Complaint fails to state a cause of action" for unlawful detainer. (Memo. 2:1‐3.) Plaintiff's complaint adequately states an unlawful detainer cause of action, so summary judgment must be denied. The words "an...

Excerpt: ...ntains an enforceable mandatory forum selection clause that mandates that this dispute be litigated in Delaware. (Complaint, Ex. 3, 20.) Non‐signatories Vista are intended third‐ party beneficiaries of the agreement. The allegations of the complaint demonstrate that Vista are "Investor Funds" that can enforce the agreement. (Complaint, Ex. 3, 2(c)(ii) and 5; Complaint, 5, 17, 22, 24, 25, 41, 44.) In addition, Vista can enforce the agreement b...

Excerpt: .... 1-11 are overruled and stricken. Each plaintiff shall serve and file further code-compliant responses to all said Requests for Admissions omitting objections, definitions and other surplusage within 30 days of the date of order. Plaintiffs' reliance on City of Los Angeles v. Superior Court, 196 Cal. App. 2d 743 (1961), is misplaced. That decision does not require a "time boundary" for all discovery requests but only condemns obviously over-broa...

Excerpt: ...murrer to the second cause of action is sustained without leave to amend. Defendant Howard & 6th Street Food Market, Inc. is a party to the underlying contract in the action; therefore, it is not a "stranger" to the contract. As the Court previously ruled, a contracting party cannot be held liable in tort for conspiracy to interfere with its own contract. "The tort duty not to interfere with the contract falls only on strangers‐interlopers who ...

Excerpt: ...nstrued, appears to allege two causes of action: one for negligence, and one for negligent infliction of emotional distress. (See McDonald v. Filice (1967) 252 Cal.App.2d 613, 622 ["It is an elementary principle of modern pleading that the nature and character of a pleading is to be determined from its allegations, regardless of what it may be called, and that the subject matter of an action and issues involved are determined from the facts alleg...

Excerpt: ...f All Proceedings. Defendant We Work Management LLC and WeWork Companies Inc.'s motion to compel arbitration and stay is granted. The arbitration agreement includes a clear and unmistakable delegation clause. (Kelly Decl., Ex. 1 [WeWork Employee Dispute Resolution Program, 3 ["The Arbitrator, and not a court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Ag...

Excerpt: ...Disclosure Exchange Date Was Confirmed In Writing. Pro Tem Judge Tom Cohen, 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 pr...

Excerpt: ...ch of fiduciary duty. (See Stanley, 35 Cal.App.4th at 1097; Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800 ["Recovery [of emotional distress damages] has also been allowed when the negligence arises in a situation involving breach of fiduciary or quasi-fiduciary duties?"]; see also, e.g., Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1095-1099 [plaintiff may recover emotional distress damages against former attorney for breaches of fiduciar...

Excerpt: ...nd/or retention is sustained without twenty days leave to amend. "Liability for negligent hiring ... is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees." (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) Negligence liability will be impo...

Excerpt: ...athak's "motion to compel compliance with third‐party subpoena and production of documents" from Glassdoor, Inc. is denied without prejudice. I adopt the judge pro tem's thorough and well‐reasoned report and recommendation. Glassdoor cites no authority for its notion that a California court in a county where a libel suit is filed can be required to transfer discovery disputes in that suit to another county's court. Nor is a libel plaintiff re...