Excerpt: ...porary 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 c...

Excerpt: ...owinski proposes to settle this personal injury case for $1,500. For the Court to find that a settlement is in good faith, the settlors must provide substantial evidence to support a critical assumption as to the nature and extent of their liability. (See Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1350, n. 6; Toyota Motor Sales USA, Inc. v. Sup. Crt. (1990) 220 Cal.App.3d 864, 871.) In addition, the court needs to roughl...

Excerpt: ...ENTAL GROUP SAN FRANCISCO 450 SUTTER'S Motion To Recover Attorneys Fees And Costs In The Amount Of At Least $12,899.67 From Defendant Bemdad Behnood. Plaintiffs Dental Force, Inc. and Evangelista Dental Group San Francisco 450 Sutter, PC's motion to recover attorneys' fees and costs is denied. Although Defendant Bembab Behnood's anti‐SLAPP motion was poorly conceived and supported, both factually and legally, the Court cannot fi...

Excerpt: ...�Intervention. Complainant‐in‐Intervention Harford Insurance Company of the Midwest's motion for leave to file a complaint‐in‐intervention is granted. An employer's workers' compensation insurer has an unconditional statutory right to intervene in an action brought by the employee against a third‐party tortfeasor "at any time before trial on the facts." (Lab. Code § 3853; Bailey v. Reliance Ins. Co. (2000) 79 Cal.Ap...

Excerpt: ... denied without prejudice. As a threshold matter, Plaintiff incorrectly contends that PAGA requires judicial approval only of the penalties that are sought as part of a proposed settlement, but "does not require that a court approve any other elements of the proposed settlement, including the Plaintiff's individual settlement and the attorneys' fees and costs." (Mot. at 8.) Plaintiff mistakenly relies upon a prior version of Labor...

Excerpt: ...d County of San Francisco's motion for summary judgment is granted. The City is entitled to summary judgment on plaintiff's Fourth Amended Complaint and the City's Cross-Complaint. The July 16, 2014 settlement agreement between the parties is not a "regulatory contract," as the City never made a specific promise to accord plaintiff any sort of particular regulatory treatment. Plaintiff's argument that the City unconditiona...

Excerpt: ... granted in the total amount of $16,613.70. The award is made pursuant to Civil Code section 1717 and Section 9.400 of the Laws of the Benevolent and Protective Order of Elks of the United States. By amendment dated July 3, 2018, Respondent BPOE amended Section 9.400 to provide in pertinent part as follows: "In any action brought by the Benevolent and Protective Order of Elks of the United States of America against any Member, Lodge or State ...

Excerpt: ...ue Pursuant To Code Of Civil Procedure. Defendants Dignity Health, U.S. HealthWorks Medical Group, Sheila Northcutt, P.T., and Lorraine Sunday, M.D.'s motion to change venue pursuant to Code of Civil Procedure section 397 is granted. While this Court's February 20, 2018 Order denied a previous motion to transfer venue under Code of Civil Procedure Section 395 because venue is proper in San Francisco County, that order specifically preserv...

Excerpt: ...ce Of Summons And To Dismiss Action For Lack Of In Personam Jurisdiction, Or, In The Alternative, To Dismiss Or Stay On Grounds Of Forum Non Conveniens. Defendant Meco Constructors, Inc.'s motion to quash is denied. Meco is subject to the California forum selection clause in paragraph 13 of the "TERMS AND CONDITIONS OF AGREEMENT." The Court overrules Meco's objections to the Whitehouse declaration. "He who takes the benefit mu...

Excerpt: ...ve decision denying Mr. Petty's application for industrial disability is set aside. Based on its independent review of the administrative record and weighing of the evidence, while affording a strong presumption of correctness to the administrative findings, the Court finds that the administrative determination as to disability and industrial causation is not supported by the weight of the evidence. (See Usher v. County of Monterey (1998) 65 ...

Excerpt: ... judgement pursuant to CCP § 473.5(a) is granted. Since any doubts as to the application of section 437 are resolved in favor of the party seeking relief, the court finds that defendant has shown it did not receive actual notice in time to defend and that lack of notice was not due to defendant's avoidance of service or excusable neglect. The declaration of Mr. Jiang states that no papers were received by Wuxi until the local court served pr...

Excerpt: ...gers 355 LLC dba Brass Tacks' motion for summary judgment is granted. Defendants' moving papers showed that Mr. Conway did not make any slanderous publication about Plaintiff Paul O'Grady drugging a female patron's drink at the Brass Tacks bar. Mr. Conway's Declaration, Kimberly Keating's deposition testimony, and Ryan Gilbert's Declaration included with the moving papers establish that Mr. Conway did not make the alle...

Excerpt: ...amended verified petition for writ of mandate for violation of Gov't Code § 3304(b) is sustained without leave to amend. (See Code Civ. Proc. § 430.10(e).) For purposes of this demurrer, the court will assume that the Chief's decision to file a disciplinary complaint against officer Kempinski is "punitive action" within the meaning of Gov't Code § 3304(b). (See Morgado v. CCSF (2017) 13 Cal.App.5th 1, 8.) Nevertheless, the ...

Excerpt: ...eciding this case. The demurrer of defendant City and County of San Francisco (erroneously sued as Zuckerberg San Francisco General Hospital) is sustained with 20 days' leave to amend. Plaintiff has leave to name the City as the proper party to this case rather than the hospital. (S.F. Charter Article 1, § 1.101; Article IV, § 4.110; S.F. Health Code, § 111.) The court rejects the City's remaining arguments. The City has failed to show...

Excerpt: ...otion to Set Aside Dismissal. However, Plaintiff failed to file a memorandum of points and authorities at that time, and at the February 7, 2019 hearing, the Court continued the motion to March 12, 2019. Plaintiff served notice of the new hearing date to Defendant. On March 12, 2019, one week before the continued hearing, Plaintiff filed its memorandum of points and authorities. The motion is now before the Court. Plaintiff asserts that it reache...

Excerpt: ...; of the Superior Court. Plaintiff fails to show that the "Central District" is San Mateo County. The fact that the contract specified San Mateo as the place of performance is distinct from the meaning of the venue selection clause. In addition, this "wrong court" motion is untimely and plaintiff waived the venue issue. Plaintiff chose San Francisco venue when it filed this action on March 29, 2018, and defendants did not move to ...

Excerpt: ...e No. CGC‐17‐557537 is granted. The cases are consolidated for all purposes with CGC‐ 17‐557537 as the lead case. The consolidated action is stayed pending the conclusion of the federal action between the parties in the Southern Disctrict of California, Case No. 3:16‐CV‐00704‐L‐JLB (S.D.Cal. filed March 23, 2016). Currently there are three pending actions between the parties dealing in whole or in part with the issues of the prese...

Excerpt: ...o comply with the meet and confer requirements of CCP 430.41. The demurrer to the attorney malpractice (negligence) cause of action is overruled. Uchiyama cites the wrong statute of limitations as CCP 340.6 applies to the claim. Lopez sufficiently alleges discovery of the wrongdoing to render the cross‐complaint timely. (Amended Cross‐Complaint, 9‐11; see, e.g., Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 223‐225 [whe...

Excerpt: ...undisputed evidence shows that defendant Hamner entered into the promissory notes and failed to make payment by the date of maturity. (Undisputed Facts 1‐8.) Defendant Hamner's fraud defense fails. First, the defense is not pleaded in his answer. "[A] defect in the answer may entitle the moving party plaintiff to a summary judgment if the only matter in dispute is a defense that has not been intelligibly asserted in the answer." (FP...

Excerpt: ...oncerning a living trust is the county where the principal place of administration of the trust is located. (Prob. Code § 17005(a)(1).) Plaintiff has failed to provide a declaration that establishes the principal place of administration of the trust, defined as "the usual place where the day‐to‐day activity of the trust is carried on by the trustee or its representative who is primarily responsible for the administration of the trust....

Excerpt: ...s denied. Contrary to Defendants' contention, Plaintiffs James Austin and Raymond Schreiber's causes of action accrued, not when the Owner Move‐In Notice was provided to Plaintiffs, but upon discovery by Plaintiffs that Ms. Mwangi had ceased occupying the unit. Plaintiffs properly pled delayed discovery by showing that they were ignorant of the facts that suggested the eviction was noticed in bad faith until June 2016, when they learned...

Excerpt: ... and Nadine Robbins‐Laurent's motion to compel arbitration is granted and the action is stayed pending the conclusion of arbitration proceedings of all causes of action stated in plaintiff Derrick Sutherland's complaint. Defendants have met their burden to show the existence of an agreement to arbitrate between Mr. Sutherland and BAART Programs, Inc. Plaintiff's arguments that although he signed the arbitration agreement, he did not...

Excerpt: ... § 425.16(f) provides that "[t]he special motion may be filed within 60 days of the service of the complaint¿." The California Supreme Court has interpreted this provision to mean that "a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action." (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 640.) In this case, ...

Excerpt: ...ve damages allegations].) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements stated in the general punitive damages 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...

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: ...judication originally came on for hearing on February 19, 2019. The motion seeks summary adjudication against defendant Ultratick, Inc. and does not seek relief against its manager Sean Sharma. The court tentatively took the motion off calendar because plaintiff filed a notice of settlement on January 14, 2019. Plaintiff and defendant's former counsel appeared at the hearing and explained that Mr. Sharma suddenly passed away before the settle...

Excerpt: ...ivil Procedure § 397(c) on the ground of inconvenience of witnesses and promotion of the interests of justice is denied. Defendant has not shown that the interests of justice will be served because of its delay in bringing the motion and the resulting prejudice to plaintiff from a likely further continuance of the trial date. Defendant filed its motion more than a year after it filed its answer, after the parties had already engaged in significa...

Excerpt: ...le issue of material fact regarding whether the City had actual and/or constructive notice of the bolts prior to the accident. (Peterson Dec., 3‐5; Mathias Depo., 12:16‐21; 13:22‐14:5.) On summary judgment, "[t]he evidence of the moving party should be strictly construed, and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.&#...

Excerpt: ...I) and its attorney, David J. Cook, are denied. Because a self‐ represented litigant does not "incur" attorneys' fees, he or she may not recover an award of attorneys' fees as sanctions. (Musaelian v. Adams (2009) 45 Cal.4th 512, 520.) Further, Mr. Smith cannot recover expenses other than attorneys' fees as sanctions either, as "[a] party who acts on his or her own behalf does not thereby generate an expense that the par...

Excerpt: ...rly situated plaintiffs. Further, the settlement agreement provides that no portion of the settlement payments is to be paid to the LWDA, to similarly situated current and former employees, or to the PAGA representatives. Under the circumstances, is court approval of the settlement either authorized or appropriate under PAGA? 2. Should the settlement agreement be amended to expressly exclude from the definition of released Claims any representati...

Excerpt: ...the Court's February 20, 2019 Order re Stewart Title of California Inc.'s Motion for Judgment on the Pleadings, which stated in pertinent part, "Motion is granted without leave to amend as to causes of action for breach of fiduciary duty and negligence. No opposition filed. Motion is GRANTED with leave to amend to allege a breach of contract cause of action only against the moving defendant. No other amendments allowed. . . . All amen...

Excerpt: ...without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. Counsel for ATI is required to prepare a proposed order in compliance with CRC 2.550(d) and (e) and must bring it to the hearing or email it to [email protected] prior to the hearing even if the tentative ruling is not contested.=(302/EPS) Case Number:CPF19516532Case Titl...

Excerpt: ...dent no longer employed Mr. Ryan when the e-mail package was delivered. (RT, 22:2- 24.) Since Mr. Buscarino and Ryan worked in the same position, he was competent to testify regarding who employed them. The Court further notes that petitioner does not highlight any evidence showing that Mr. Ryan can be considered respondent's agent for purposes of notice. As far as the Court can discern, the only evidence before the ALJ was Buscarino's te...

Excerpt: ... for implied covenant of good faith and fair dealing and is overruled as to the remaining causes of action. The Court has subject matter jurisdiction over the causes of action alleged in the FAC. The allegations on their face do not support defendant's challenge to the subject matter jurisdiction of the Court: Mr. Drenberg, a California resident, is suing on a contract that he allegedly entered into in California and performed partially in Ca...

Excerpt: ...ideration of the Court's January 29, 2019 Order denying his amended petition to compel arbitration is denied. Petitioner has failed to show any new or different facts, circumstances or law than those before the Court at the time of the original ruling. (Code Civ. Proc. § 1008(b).) Petitioner's motion is premised on an unsigned Memorandum of Understanding that was before the Court on the first motion (Sgromo Decl., Exh. 15), and it does n...

Excerpt: ... seek punitive damages if an employer fraudulently induces her to enter into an employment contract because by "pursuing a valid fraud action, a plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future." (Id. at 639.) Unlike Brewer v. Premier Golf Properties, LP (2008) 168 Cal.App.4th 1243, 1250, the complaint does not seek punitive damages based solely on a ...

Excerpt: ...er for pretrial purposes or for trial to enhance trial court efficiency and to avoid the danger of inconsistent adjudications. Here, the two actions involve distinct claims against different defendants‐the first is no longer pending in that final judgment has already been entered, and the second has not yet proceeded to trial. Consolidation is not authorized or warranted under such circumstances. Plaintiff Julie Lee's motion for imposition ...

Excerpt: ... Code § 2699. In particular, the parties have not agreed to release or discharge any PAGA claims by any other individual, whether brought individually or on behalf of other aggrieved employees. The Court finds that the allocation of $15,000 in civil penalties to the settlement of plaintiff's PAGA claims, in relation to the settlement amount allocated to plaintiff's individual claims in the parties' confidential settlement agreement (...

Excerpt: ...tion under the Song-Beverly Act, plaintiff is entitled to recover "a sum equal to the aggregate amount of costs and expenses . . . determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Civ. Code § 1794(d).) Under the Song-Beverly Act, the Legislature intended the word "expenses" to cover items, such as expert fees, not included in the statutory ...

Excerpt: ...ear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If no...

Excerpt: ...anting the motion of plaintiffs and judgment creditors Dale Duncan and Marta Mendoza's for the appointment of Kevin Whelan as receiver, plaintiffs' choice of receiver is entitled to great weight and there has been no showing sufficient to overcome the presumption that Mr. Whelan will faithfully comply with his oath and all court orders. Any party who contests a tentative ruling must send an email to [email protected] with a copy t...

Excerpt: ...ned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by emai...

Excerpt: ...nd Dev Gnanadev, M.D.'s demurrer to Petitioner William Y. Moores, M.D.'s first amended petition for writ of mandate and complaint for damages and declaratory and injunctive relief is sustained without leave to amend as to all nine causes of action. Petitioner's claims fail for several reasons-most notably, expiration of statutory limitations periods and principles of res judicata. Per Evidence Code sections 452(c)-(d), and 453, the Co...

Excerpt: ...t necessarily follow that because the Wells Fargo account was only used for the apartment's rents and expenses, every deposit into the account constituted "missing rental income." Standing alone, the single deposit on one occasion in 2017 from a Chase bank account does not necessarily lead to any particular conclusion about the Chase account. Here, Defendants have provided an explanation for the Chase deposit - that is, it was money t...

Excerpt: ...tners, Inc.'s motion for summary judgment is denied. The motion is denied as moot as to the cross‐complaint by Armstrong Flooring, Inc. because that cross‐complaint was dismissed on January 10, 2019. Nova's motion is denied as to the Maxxon Corporation cross‐ complaint because Nova failed to maintain its burden of production. The Court sustains Maxxon's objection to the Marks declaration because he failed to sign it. (Code Civ. ...

Excerpt: ...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, the...

Excerpt: ...ion is Contra Costa County, the residence of both Defendants, and the county in which the alleged contract was entered into, was to be performed, and was allegedly breached. (Code Civ. Proc. Secs. 395(a), 395.5.) A cause of action for defamation or slander is not an action "for injury to person" within the meaning of Section 395(a). (Graham v. Mixon (1917) 177 Cal. 88, 93; see also Carruth v. Superior Court (1978) 80 Cal.App.3d 215, 217�...

Excerpt: ...r True Name. Defendant City and County of San Francisco's motion for an order requiring Plaintiff "John Doe" to proceed under his true name is granted. While there is no blanket rule against the use of fictitious names by plaintiffs in cases where (as here) such a procedure is not explicitly authorized by statute, a plaintiff may not use a fictitious name except when unusual circumstances justify protecting his true identity, such as ...

Excerpt: ... an accident that occurred on October 18, 2015 was filed on August 2, 2016, and all of the evidence of Plaintiff's medical treatment dates to 2015 and 2016. At Plaintiff's deposition, which was taken on December 15, 2016, Plaintiff testified that he was suffering residual pain from the accident. Plaintiff has failed to show good cause for not seeking reclassification earlier. (Code Civ. Proc. § 403.040(b)(2).) That counsel delayed for mo...

Excerpt: ...ke portions of plaintiff Keri Findley's first amended complaint is denied as to the request for punitive damages and sustained with leave to amend as to the request for injunctive relief. Ms. Findley has sufficiently alleged that defendants engaged in malicious conduct with a willful and conscious disregard for the rights of others by alleging that defendants caused her termination in order to continue their illicit scheme. Ms. Fridley has no...

Excerpt: ...is granted in the amount of $1,081,315. Plaintiffs have carried their burden to show by a preponderance of the evidence (1) that the claim upon which the attachment is based is one upon which an attachment may be issued; (2) Plaintiffs have established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4...

Excerpt: ...or Summary Adjudication Defendant Equinox Holdings, Inc.'s motion for summary judgment is granted. Causes of action 1, 3, 5, and 9 all fail because Equinox is not vicariously liable for the alleged sexual assault as a matter of law. Equinox has a policy against sexual assault and such conduct is not part of normal yoga instruction. (Plaintiff's Response to UMF 2.) The fact that it is foreseeable that yoga instruction can involve touching ...

Excerpt: ...the "Punitive Damages Allegations" contained in paragraphs 15 and 16, is granted. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [affirming order striking punitive damages allegations].) 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 ha...

Excerpt: ...s Glass Systems, Inc.'s motion for undertaking is denied. Bagatelos fails to present competent evidence demonstrating that there is a "reasonable possibility" that it will prevail within the meaning of Code of Civil Procedure § 1030(a). The only evidence that Bagatelos relies upon is the declaration of counsel Christopher Rodriguez. The Court sustains C.I. Energia's objections to that declaration. The declaration fails to show th...

Excerpt: ...led to show either a reasonable probability of success on the merits or an imminent threat of irreparable harm. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442 [holding that an injunction must not issue unless it is reasonably probable that the moving party will prevail on the merits]; Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471 [holding that is...

Excerpt: ...ompel Appearances At Depositions, (2) To Compel Production Of Documents At Deposition, And (3) For Sanctions 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 p...

Excerpt: ...infliction of emotional distress without leave to amend. Mr. King's intentional infliction of emotional distress claim is time‐barred. Claims for intentional infliction of emotional distress have a two‐year statute of limitations. (Code Civ. Proc. § 335.1; Wassmann v. South Orange Cty. Comm. College Dist. (2018) 24 Cal.App.5th 825, 852‐53.) "A cause of action for intentional infliction of emotional distress accrues, and the statute...

Excerpt: ...e of action for declaratory relief, and is sustained as to the third cause of action for fraud with 30 days' leave to amend. The Court takes judicial notice of the Subscription Agreement, which both parties discuss. The Court previously denied Defendants' motion for judgment on the pleadings as to the breach of contract cause of action. Defendants' newly-asserted contention that the contract is illegal and unenforceable is unavailing....

Excerpt: ...Continued Per Parties' Request. Defendants' petition to compel arbitration of all the complaint's counts save the Private Attorney General count is GRANTED and this litigation is STAYED pending the arbitration. (CCP §1281.4.) The two arbitration agreements' existence is undisputed. The agreements are not invalid because "permeated with unconscionability," as plaintiffs argue. Two sentences in the three‐page single‐spa...

Excerpt: ...019 to serve Defendants' counsel with a declaration attaching medical records that provide evidentiary support for that request. Such declaration shall be served by hand and email on opposing counsel, and a courtesy copy must be provided to Department 302, specifying that it is for the Court's viewing and not for filing. If Defendants wish to object to the sufficiency of Ms. Karnazes's declaration and medical records, they must do so ...

Excerpt: ...9;s Petition/Application To Compel Arbitration And Stay Civil Action.(part 1 of 2) Defendants Milestone Financial, LLC, Bear Bruin Ventures, Inc., William R. Stuart, Carolyn Stuart, and Zoe Hamilton's petition to compel arbitration and stay civil action is denied. Plaintiffs allege that they were fraudulently induced to enter into the original loan agreement and later loan modification agreements by Defendants' fraudulent misrepresentatio...

Excerpt: ...ter judgment pursuant to Code Civ. Proc. § 666.4 are satisfied. There was no "pending litigation" between the parties when they stipulated that their settlement may be enforced under § 664.6. (Kirby v. Southern California <0003003e00550048004f00 00460058005700480047[ before suit filed could not be enforced under § 664.6]; see also Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206 ["By its very terms, section 664.6 is limit...

Excerpt: ...s filed on October 24, 2016. Plaintiff failed to exercise reasonable diligence in the prosecution of this action. He did not serve defendant with the summons and complaint for over six months, causing the Court to issue an order to show cause. The delay was not attributable to settlement negotiations or discussions. Plaintiff was not reasonably diligent in either seeking or responding to discovery. Plaintiff failed timely to respond to proper dis...

Excerpt: ...attorneys' fees and costs as sanctions is denied. Plaintiff Toni Lessler expressly consented to the Mutual Arbitration Agreement ("MAA" or "the agreement") by signing it. Defendant's signature on the MAA was not a requirement for Defendant to enforce the agreement to compel arbitration. (See Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 176 ["[T]he writing memorializing an arbitration agreement need...

Excerpt: ...s‐containing products or materials attributable to defendant. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1442.) The burden of production "should not shift without stringent review of the direct, circumstantial and inferential evidence." (Sheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) Defendant cannot rely on a plaintiff's factually devoid discovery responses in the absence of conducting comprehens...

Excerpt: ... written fee agreements between an attorney and a client, Business and Professions Code section 6148(a) requires an attorney, at the time the contract is entered into, to "provide a duplicate copy of the contract signed by both the attorney and the client . . . to the client." Failure to comply with any provision of section 6148 "renders the agreement voidable at the option of the client," but "the attorney shall, upon the agr...

Excerpt: ...eir First Amended Cross‐Complaint. Judge Schulman discloses that he is personally acquainted with Jeffrey Lowenthal, one of Defendants' counsel. This will not interfere with his ability to fairly and impartially decide this matter. Defendants Fifth Historic Properties, LLC,, Martin Mcnerney Development, Inc., 418 Jessie Historic Properties, LLC, 418 Jessie Properties, LLC's motion for leave to file a first amended cross‐complaint is g...

Excerpt: ... to amend as to all causes of action. Mr. Sherwin has failed to plead facts demonstrating or excusing compliance with the claims presentation requirement of Gov't Code § 900 et seq. (State of California v. Superior Court (2004) 32 Cal.4th 1234.) Mr. Sherwin has not alleged his claim was delivered to the Office of Risk Management at the Office of the Chancellor of the California State University as required by Gov't Code § 915 (d) or tha...

Excerpt: ... Inc.'s petition to compel arbitration of the claims asserted in plaintiff Okan Pergil's first amended complaint is granted and the action is stayed pending conclusion of the arbitration proceedings. Beverages & More has met its burden to show by a preponderance of the evidence that Mr. Pekgil electronically signed the Arbitration Agreement by completing an onboarding process which plaintiff accessed through his personal email account sho...

Excerpt: ...s denied. A trial court considering a forum non conveniens issue engages in a two‐step process. The first step is to determine whether a suitable alternative forum exists. (National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal.App.4th 902, 917.) Where (as here) there is a suitable alternative forum, the court proceeds to the next step, consideration of the private interests of the parties and the public interest in keeping the ...

Excerpt: ...as carefully considered the declarations and documents filed by all three cross-defendants seeking good faith determinations in this case, particularly Plaintiff's interrogatory responses regarding the amount of their claimed damages and the report of Plaintiffs' expert Richard Avelar regarding the causes of the claimed damages and the costs to repair the identified water intrusion and associated damages. The discovery responses, expert r...

Excerpt: ...ges is granted. Plaintiffs have not shown clear and convincing evidence that Defendants committed or ratified an act of oppression, fraud, or malice, or evidence from which such an inference reasonably could be drawn. (Civ. Code § 3294(b).) Summary adjudication of plaintiffs' retaliation claims is granted because plaintiffs have failed to make a prima facie showing of any causal link between their protected activity and any alleged adverse e...

Excerpt: ...n Tober's first amended complaint is overruled as to the first and fifth causes of action for breach of contract and breach of Business & Professions Code section 17200, and sustained without leave to amend as to the second, third and fourth causes of action for interference with contractual relations, willful failure to pay wages in violation of the Labor Code, and intentional interference with prospective economic advantage. As an initial m...

Excerpt: ... action 1-6. Insurance Code § 790.05 provides that whenever the Commissioner shall have reason to believe that an unfair practice is occurring and it would be in the public interest to issue an order to show cause, then the Commissioner shall issue an order to show cause. Plaintiffs allege that persons are violating Insurance Code §§ 14022 and 14022.5, the Commissioner has been apprised of specific evidence regarding these violations, and that...

Excerpt: ...est For Production Of Documents; Compelling Responses To Written Interrogatories; Establishing Admissions; And Request For Sanctions. Plaintiff CACH, LLC's motion for order compelling responses to Plaintiff's request for production of documents, compelling responses to written interrogatories, establishing admissions, and request for sanctions is granted in part. Defendant William Taylor's discovery responses were due by November 20, ...

Excerpt: ...e Alternative Transfer, For Lack Of Subject Matter Jurisdiction And Supporting Memorandum Defendant State Compensation Insurance Fund's motion to dismiss proceeding and its petition for relief or, in the alternative, transfer for lack of subject matter jurisdiction are DENIED without prejudice to renewal after the second amended complaint is filed. Absent an operative complaint, I would largely be ruling in a vacuum. Though State Fund did not...

Excerpt: ...r Gypsum Company, Inc. and Hanson Permanente Cement, Inc. formerly known as Kaiser Cement corporation, into the following subgroups: 1) wrongful death/mesothelioma; 2) living/lung cancer: 3) wrongful death/lung cancer; 4) living/other cancer; 5) wrongful death/other cancer; 6) living/asbestosis; 7) wrongful death/asbestosis; 8) living/pleural disease, is denied. The actions do not involve sufficient common questions of law or fact, economy and co...

Excerpt: ... is denied. Defendant does not maintain its initial burden of production. Defendant fails to show that the fine dust on the light colored floor was a trivial defect and therefore there is a triable issue of material fact regarding the existence of a dangerous condition of property. (Vargas Special Rog. Response, #1.) Privette v. Sup. Crt. (1993) 5 Cal.4th 689 and its progeny are inapposite. The instant action does not involve the injury of an emp...

Excerpt: ...ay Arbitration And For Consolidation Arterra's motion for preliminary injunction is DENIED. The Association and JAMS are not parties to this action. In fact, Arterra seeks injunctive relief against non-party JAMS and there is no showing that JAMS even has notice of this motion. While in some circumstances an injunction can run against a non-party agent, the court believes that the better practice would be to name JAMS or at the very least giv...

Excerpt: ...x v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808; Amended Complaint, 42.) Plaintiff's allegations of exclusive knowledge and active concealment support the claim in the absence of a fiduciary relationship. (See Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651; Amended Complaint, 12-15 and 102.) The economic loss rule does not bar the claim because plaintiff pleads tortious conduct independent of the alleged breach of contract. Any...

Excerpt: ...ber 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: ...t Carlos Del Olmo's motion for reconsideration of the September 27, 2018 order reinstating the default entered against him on February 13, 2018 is granted on the condition that Mr. Del Olmo pay plaintiff Leslie <0003001500130014001c00 00480003005700520003>pay that sum by the required date will result in prejudgment interest of 10 percent per year on any unpaid amount added to the amount due, but is not a basis to reinstate the default entered...

Excerpt: ...proceedings on all of the claims alleged by plaintiff Maria Tatone other than her PAGA claim. The Arbitration Agreement supersedes all inconsistent language in the Offer Letter and requires the parties to arbitrate all "Arbitrable Claims" as defined in the Arbitration Agreement except claims relating to the rights and obligations of the parties set forth in the CIAA. The parties' three agreements can easily be harmonized and reconcile...

Excerpt: ... To Plaintiff Artem Koshkalda And Andriy Kravchuks Responses To Form Interrogatories Set One Special Interrogatories Set One And Requests For Production Of Documents Set One Pro Tem Judge 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 agreei...

Excerpt: ..., And For Monetary Sanctions Pro Tem Judge 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 Judg...

Excerpt: ...utes whether: 1) the combination of the carpet, gap, and lip of the trim constitutes a dangerous condition of property (Williamson Depo 63:14‐23; 68:2‐19; 69:22‐71:13) and 2) that condition caused Ms. Tryon's injury (Williamson Depo 69:22:1‐71:13). While Sutter's reply memorandum argues that Ms. Tryon has no evidence on the element of notice, Sutter's notice of motion does not mention that issue nor was that issue argued in Su...

Excerpt: ...Assurance Company To Produce Documents And Further Written Responses To Request For Production Of Documents, Set Two, Regarding Its In-House Doctor Carla Morton, M.D. 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 t...

Excerpt: ...ive damages prayer is GRANTED. Defendants shift the burden of production to plaintiff if they "present evidence that he does not possess, and cannot reasonably obtain, needed evidence ‐ as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854‐55.) Defendants have shown via plaintiff's discovery responses his lac...

Excerpt: ...iffs, Defendant ConocoPhillips failed to sustain its burden of demonstrating that Plaintiffs do not possess and cannot reasonably obtain evidence regarding Plaintiffs' cause of action for premises liability, Plaintiffs' cause of action for loss of consortium, and Plaintiffs' claim for punitive damages. (CCP § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 850‐51.) The burden of production "should not ...

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

Excerpt: ... declarations and documents filed by all three cross-defendants seeking good faith determinations in this case, particularly Plaintiff's interrogatory responses regarding the amount of their claimed damages and the report of Plaintiffs' expert Richard Avelar regarding the causes of the claimed damages and the costs to repair the identified water intrusion and associated damages. The discovery responses, expert report, and other declaratio...

Excerpt: ...iled on October 24, 2016. Plaintiff failed to exercise reasonable diligence in the prosecution of this action. He did not serve defendant with the summons and complaint for over six months, causing the Court to issue an order to show cause. The delay was not attributable to settlement negotiations or discussions. Plaintiff was not reasonably diligent in either seeking or responding to discovery. Plaintiff failed timely to respond to proper discov...

Excerpt: ...avor of the earlier-filed action pending in Texas state court is denied. A trial court considering a forum non conveniens issue engages in a two-step process. The first step is to determine whether a suitable alternative forum exists. (National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal.App.4th 902, 917.) Where (as here) there is a suitable alternative forum, the court proceeds to the next step, consideration of the private int...

Excerpt: ...i-SLAPP analysis because she has not met her threshold burden of show that her alleged denigration of Plaintiffs' dental practice constituted statements "made in a place open to the public or as public forum in connection within an issue of public interest" or "any other conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest." (Co...

Excerpt: ... Petition/Application To Compel Arbitration And Stay Civil Action. (part 1 of 2) Defendants Milestone Financial, LLC, Bear Bruin Ventures, Inc., William R. Stuart, Carolyn Stuart, and Zoe Hamilton's petition to compel arbitration and stay civil action is denied. Plaintiffs allege that they were fraudulently induced to enter into the original loan agreement and later loan modification agreements by Defendants' fraudulent misrepresentations...

Excerpt: ...constitute any cause of action. (Code Civ. Proc. § 340.) The Court sustained the Medical Board's previous demurrers in part without leave to amend, but granted Plaintiff leave to amend her claim that the Medical Board has violated Business and Professions Code Section 828 by not excluding investigative reports from information provided to persons outside of the Medical Board. Plaintiff's second amended complaint does not allege any facts...

Excerpt: ...s will not affect his ability to fairly and impartially decide this matter. Petitioner KHP III SF Sutter LLC's motion for an award of attorneys' fees under Code of Civil Procedure section 1021.5 is denied. While a taxpayer's due process right to appeal from a real property tax assessment undoubtedly is an important right affecting the public interest, the necessity and financial burden of private enforcement are not such as to make th...

Excerpt: ...te as a matter of law that it did not owe a duty of care to Mr. Roussos. Businesses, such as restaurants and bars, have an affirmative duty to take reasonable steps to secure their premises against reasonably foreseeable criminal acts of third parties. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) Under certain circumstances, this special-relationship-based duty may include a duty to provide security guards to protect the safety of pa...

Excerpt: ...s on both prongs of the anti- SLAPP motion analysis. First, Defendant has shown that the course of action challenged by Plaintiff arises from protected petitioning or free speech activity. As Plaintiff concedes in his opposition, his claims arise entirely from the allegedly false statement about his failure to pass the California Professional Responsibility Exam (CPRE) by February 15, 1993 as required by the State Bar and the resulting suspension...

Excerpt: ...er judgment confirming the award in favor of The Nobo, LLC and against Respondent Applepalm Enterprises, Inc. per Code of Civil Procedure section 1287.4. The scope of judicial review of arbitration awards is extremely narrow. An arbitrator's decision generally is not reviewable for errors of fact or law. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11; Branches Neighborhood Corp. v. Calatlantic Group, Inc. (2018) 26 Cal.App.5th 743, 750.) ...