Excerpt: ...ntrary to the weight of the evidence. The evidence shows that Mendoza agreed to submit to a breath test but failed to complete the test when, on each of three attempts, he refused to place his lips completely over the mouthpiece, causing an error. (See Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 875 [compliance with the implied consent law consists of completing, not merely attempting the test offered].) Mendoza's failure to c...

Excerpt: ...nt is denied. Although Plaintiff did not timely serve the second amended complaint in compliance with the court's order, Defendants did not seek entry of judgment pursuant to Code Civ. Proc., § 581(f)(2) before Plaintiff served the second amended complaint. Further, Defendants do not show that they met and conferred with Plaintiff before filing their motion to strike, as required by Code Civ. Proc., § 435.5. Any party who contests a tentative r...

Excerpt: ...brief. As the court previously noted, petitioner had the information that it needed to assert this issue prior to filing his moving papers, but he failed to do so. The reply brief was not rebutting an argument that respondent raised. Petitioner therefore waived the matter. Petitioner's citation to and reliance on an unpublished Court of Appeal decision is improper. (Cal. R. Ct. 8.1115(a).) The court rejects Petitioner's res judicata argument, whi...

Excerpt: ...its initial burden. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [a defendant moving for summary judgment "bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto."].) Morrow‐Meadows has not established there are no triable issues of fact as to whether it is liable to Plaintiff. Morrow‐Meadows owed a duty of care to Plai...

Excerpt: ...ecember 30, 2019, Line 1, PLAINTIFF FRED LARSEN Motion To Compel Defendant Top Dog Pet Care LLC (Dba Top Dog Sf) To Produce Its Person(S) Most Qualified And Custodian Of Records To Appear For Deposition And Production Of Documents And Request For Monetary Sanctions. Pro Tem Judge Bruce Highman, 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 m...

Excerpt: ..., PETER YORKE, SHAUN SAMUELS Motion In Support Of Motion To Compel Deposition Of Person Most Knowledgeable Of Defendant And Cross‐Complainant Confluent Medical Technologies, Inc.; Memorandum Of Points And Authories; Declaration Of Kirk B. Freeman; Request For Judicial Notice Plaintiff Endovention, Inc.'s motion to compel deposition of person most knowledgeable of Defendant and Cross‐Complainant Confluent Medical Technologies, Inc. is granted ...

Excerpt: ...roceeding." Plaintiff's request for the court to exercise "discretion" under § 1032(a)(4) is misplaced. A prevailing party includes a "defendant in whose favor a dismissal is entered" such as Defendant in this matter, in whose favor judgment was entered on November 20, following its successful motion for summary judgment. (Code Civ. Proc. § 1032(a)(4).) A court may not consider the paying party's financial resources or inability to pay. (See Ne...

Excerpt: ... loan agreement contains a mandatory forum selection clause, selecting San Francisco County for all disputes. (Compl., Ex. A, 6.) Thus, Defendant has contracted away his right to choose the forum. (Berg v. MTC Electronics Tch. (1998) 61 Cal.App.4th 349, 358 ["The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause."]; Cal-State Bus. Prod. & Servs. (1993) 12 Cal.App.4t...

Excerpt: ...re Sanctions. Plaintiff's motion to seal is denied. Both parties' requests for sanctions are denied. "Unless confidentiality is required by law, court records are presumed to be open." (Cal. Rules of Court, Rule 2.550(c).) Records may be sealed only if the court "expressly finds" that "(1) There exists an overriding interest that overcomes the right of public access to the record; [] (2) The overriding interest supports sealing the record; [] (3)...

Excerpt: ... And Or Vacate Judgment Of Dismissal Of Action With Prejudice, After Sustaining Of Demurrer To Complaint Without Leave To Amend And Order Granting Defendants Demurrer To Complaint, If Entered. (Part 2 Of 2 For Tentative Ruling). After the six-month period for statutory relief has passed, the court may still grant relief on equitable grounds, including extrinsic fraud or mistake. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.) There ...

Excerpt: ...at Daniel Akhromtsev has been using CHH's funds to make questionable expenditures, including monthly car payments, credit card payments, gasoline, grocery shopping, dining, food delivery, and other personal expenses; and generally that Defendants have been managing CHH without the full knowledge or consent of Plaintiffs, although CHH's operating agreement provides that it "shall be controlled by its Members, acting unanimously." Defendants summar...

Excerpt: ...To Impose Monetary Sanctions On Defendants Patrick Foy, Franklin Loffer, Np Sand And Sea Partners, Llc, Nphss, Llc, And North Point Ocean Partners, Llc Pro Tem Judge Robert Kane, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion ma...

Excerpt: ...ntiffs and Vantage Maintenance. (See Code Civ. Proc., § 452; Compl., 2, 5, 9, 11.) Vantage Maintenance argues the allegations use boilerplate language, but at the outset of litigation, the amount of specificity in Plaintiffs' complaint adequately gives the Defendants notice of the issues. (See, e.g., Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 451.) Similarly, at the pleading stage, Plaintiffs do not have to specifically name whic...

Excerpt: ... 430.10(e).) "Res judicata bars a cause of action that was or could have been litigated in a prior proceeding if: '(1) the present action is on the same cause of action as the prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. [Citation.]'" (Federal Home Loan Bank of San Francisco v. Countrywide Finan...

Excerpt: ...ative mandamus in Superior Court. (See, e.g., Delta Dental Plan of California v. Banasky (1994) 27 Cal.App.4th 1598, 1605‐1608.) However, Defendant has not conclusively established that such a claim is the only cause of action that Dr. Khehra may bring following the termination of her membership or contract, or that all of her causes of action solely constitute challenges to such termination. (See, e.g., Economy v. Sutter East Bay Hospitals (20...

Excerpt: ...ys General Act of 2004 (PAGA) for civil penalties for Defendants' alleged violations of the California Labor Code governing, among other things, provision of meal and rest breaks, payment of wages, provision of itemized wage statements, and indemnification of expenditures. Claims under PAGA are not arbitrable. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384 ["where, as here, an employment agreement compels the waiver o...

Excerpt: ...quests For Admissions, Admitted Pro Tem Judge Scott Borrowman, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before ...

Excerpt: ...ide the scope of the arbitration clause in the Operating Agreement, which provides that "any dispute arising out of this Agreement shall be arbitrated under the terms of this clause." This clause is limited in scope to disputes relating to the interpretation and performance of the Operating Agreement. (See Rice v. Downs (2016) 248 Cal.App.4th 175, 187.) Plaintiff's "Complaint for Breach of Written Loan Agreement" does not allege any breach of the...

Excerpt: .... Plaintiff has maintained its burden of production on each of its claims for breach of contract and common counts based upon the declaration of Plaintiff's qualified witness, Jarrad M. Emamian. The Court overrules Defendant's objections to the Emamian declaration. Mr. Emamian properly lays a foundation to testify regarding the Bank's business records, which meet the business records exception of Evidence Code, § 1271. (Emamian Decl., 1‐5; Peo...

Excerpt: ...ction for declaratory and injunctive relief is sustained without leave to amend. (See Code Civ. Proc., § 1061 ["The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances."] The gravamen of the third cause of action contests respondent Regents' conduct during the course of the substitution administrative hearing. (Complai...

Excerpt: ...staining without leave to amend Defendants' demurrer to the petition for writ of mandate and complaint for injunctive and declaratory relief, the Court entered judgment against Petitioners, and directed that they "shall take nothing by reason of their complaint" and that the action be dismissed with prejudice. Petitioners are not entitled to attorneys' fees under the Ralph M. Brown Act. Government Code section 54960.5 authorizes a court to award ...

Excerpt: ...tion for breach of contract alleged by Solvd, sustained without leave to amend as to the sixth cause of action for violation of Penal Code 496, and overruled as to all other causes of action. The breach of contract claim alleged by Solvd, a non‐party to the contract, lacks ultimate facts to support Solvd's ability to sue as a successor. There is no allegation why Solvd is a successor to QaProsoft. The second through fourth causes of action for ...

Excerpt: ... Enforce Protective Order, And Stay Discovery Pro Tem Judge Aaron Minnis, 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 proc...

Excerpt: ...IA MATURIN'S Motion To Compel Deposition Attendance Of Defendant General Motors Llcs Person(S) Most Knowledgeable And Custodian(S) Of Records; And Request For Sanctions Pro Tem Judge Scott Borrowman, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreei...

Excerpt: ... leave to amend. Ms. Bell alleges that the City is directly and vicariously liable for the negligent training, hiring, and disciplining of its officers. The City has no direct liability for negligent hiring and supervision. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252 ["We find no relevant case law approving a claim for direct liability based on a public entity's allegedly negligent hiring and supervision practices."]; Munoz...

Excerpt: ...duty and the eighth cause of action for fraud in the cross-complaint filed by Robert and Nili Poynter is overruled as to all three causes of action. The cross-complaint does not show that the negligent misrepresentation and fraud claims are necessarily barred by the statute of limitations. Assuming the limitations period began to run in April 2016, the cross- complaint was filed within three years of the filing of this lawsuit. (ZF Micro Devices,...

Excerpt: ...ed 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 email...

Excerpt: ...unty Superior Court. Defendant Julie Anne Mesman's motion to change venue is denied. Defendant's motion to change venue under Code Civ. Proc. § 397(a)'s mandatory grounds 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 Community Ho...

Excerpt: ...gainst it in the first amended complaint filed by plaintiff Coby Velasquez is granted without prejudice to Mr. Velasquez's right to file a motion seeking leave to amend to allege punitive damages allegations against Ridge Tool if and when Mr. Velasquez discovers or otherwise learns of and is able to plead facts supporting punitive damages liability against Ridge Tool. No opposition filed and good cause shown. Mr. Velasquez has not alleged suffici...

Excerpt: ... DEFENDANT DONG FU's Motion To Sanction Demas Yan, Tina Yan, And Mark Lapham And To Set Aside And Void (1)Judgment Of January 14, 2015 And (2) Acknowledgment Of Assignment Of Judgment Of August 5, 2019 And To Deem Or Declare Demas Yan And Tina Yan To Be Alter Ego Of Legal Recovery, LLC. Defendant Dong Xing Fu's motion to sanction Demas Yan, Tina Yan and Mark Lapham, to set aside the judgment of January 14, 2015 and the assignment of that judgment...

Excerpt: ... ends of justice would be promoted by the change." The burden is on the party seeking a change of venue to prove 1) that the convenience of witnesses and 2) that the ends of justice will be promoted by a change. (Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 477.) To show the convenience of witnesses, the moving party "must do through affidavits which contain something more than generalities and conclusions. Affidavits or de...

Excerpt: ...t possess, and cannot reasonably obtain, needed evidence that he was exposed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Defendant failed to ask follow up questions about Bob Johnson, who Plaintiff testified made purchases with him at the Pacific Coast Building Supply Store. (Triplett Declaration, Ex. B at 667; Scheiding v. Dinwiddie Constr. Co. (1999) 6...

Excerpt: ...omplaints were untimely. "Substantial evidence" is defined as evidence of "ponderable legal significance?reasonable in nature, credible, and of solid value?[and] relevant evidence that a reasonable mind might accept as adequate to support a conclusion." (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) The parties agree that "[u]nder the City's internal complaint procedures, complaints of discrimination must be filed within 180 calendar days of t...

Excerpt: ... Superior Court. Defendant Julie Anne Mesman's motion to change venue is denied. Defendant's motion to change venue under Code Civ. Proc. § 397(a)'s mandatory grounds 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 Community Hospit...

Excerpt: ...ge Steve 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 wi...

Excerpt: ... Or, In The Alternative, Summary Adjudication Of Issues. Defendants San Francisco Unified School District, Valerie Hoshino, Lisabeth Castro-Smyth, and Julie Goot's motion for summary judgment and alternative motion for summary adjudication are denied in their entirety. As to the breach of mandatory duty claim, the court determines that CANRA required that a report be made on behalf of plaintiff John Doe as a victim and there is a triable dispute ...

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

Excerpt: ...oss‐complaint is granted on the following specified conditions which Geo‐Cell must agree to either orally at the hearing or in writing sent to counsel for cross‐defendant Maxxon Corporation prior to the hearing. The conditions that Geo‐ Cell must agree to are: 1) Geo‐Cell must serve verified code‐compliant responses without objection other than privilege no later than December 16, 2019 to the following deem‐served discovery: a) stat...

Excerpt: ...ely concede that they have failed to exhaust administrative remedies. (See Contractors' State License Board v. Sup. Ct. (2018) 28 Cal.App.5th 771, 778‐79.) Plaintiffs nonetheless urge me to bypass the administrative proceedings using a "public policy exception" that appellate courts sometimes invoke, usually without calling it that. However, I believe a factual record developed in the administrative proceedings would be beneficial to reasoned a...

Excerpt: ... all overruled: 1: A "plaintiff may plead the legal effect of the contract rather than its precise language." (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) Moreover, defendants claim no lack of clarity regarding the contract. (Id.) 2: Alter ego is adequately pled against the individual defendants. (Cmplt. 2:19-3:19.) 3: Promissory fraud is adequately pled; e.g., the complaint alleges that defendant...

Excerpt: ...s all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party a...

Excerpt: ...er of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority ...

Excerpt: ...r A Protective Order Against Anna Gatti For Failure To Attend And Proceed With Noticed Deposition Under CCP 2025.430, 2025.420 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 T...

Excerpt: ... Kimomex's CEO, CFO and secretary. (TAC 7:11‐15.) Lujan was also Kimomex's responsible managing employee (RME), making him personally liable for its unpaid sales, employment and income taxes. (Id.) Lujan pleads that "commencing in 2014, taxing authorities have seized on" him "to satisfy these liabilities based on his status as RME." (Id. at 9:12‐15.) On August 23, 2019, Lujan filed his TAC; it pleads a single cause of action, for "indemnity a...

Excerpt: ...Unum Life Insurance Company of America's motion to sever is granted. The court severs the cause of action for writ of mandamus against the Commissioner of the Department of Insurance and directs the Clerk of the Court to assign a new case number to that claim. There is no basis for mandatory joinder of the writ of mandamus claim against the Commissioner and the breach of contract and bad faith claims against the insurers. Compulsory joinder is re...

Excerpt: ...mayof, Simayof, Inc., a California corporation, and SIMUS, Inc., a California corporation, dba Simayof; and to a judgment of $135,000 against World of Charms, Inc., a Nevada corporation, aka WOC, Inc., aka Sarit Simayof Reveal Your Charm and Sarit Simayof, aka Sarit Simhayoff‐ Cohen, an individual (hereinafter "WOC"). The evidence indicates that Adi Simayof breached the stipulation for entry of judgment by failing to make timely payments. Mr. S...

Excerpt: ...he court employs the independent judgment rule when analyzing petitioner's writ of mandate because she has a fundamental vested right to the disability benefits if in fact she was disabled in 2004 when she stopped working for respondent. (See Beckley v. Board of Administration (2013) 222 Cal.App.4th 691, 697.) "[I]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative fin...

Excerpt: ...dence that he was exposed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Plaintiff testified that insulation dust would fall from the boards when the scaffolding was dismounted and dismantled and dust would float through the air while employees were walking around the process. (Defendant's Ex. E [Houchins Deposition at 746].) Plaintiff also testified that indust...

Excerpt: ... Determination. Caritas Management Corporation's Motion to Contest Good Faith Settlement is granted. This ruling is without prejudice to settlors renewing their application for a good faith determination upon a proper evidentiary showing. Although settlors assert this is a "miniscule" liability case in light of Caritas' role in hiring and supervising Mr. Bursey, they have not presented any admissible evidence that would enable the Court to determ...

Excerpt: ... of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.'" (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; see also Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 ["A book account may furnish the basis for an action on a common account ' . . . when it contains a statement of the debits and credits of the transactions involved com...

Excerpt: ...e Civ. Proc., § 430.10(e), (f).) A "demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California (1993) 14 Cal.App.4th 612, 616; see also Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 ["demurrers for uncertainty are disfavored, and are granted only if the pleading...

Excerpt: ... 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 improper in San Francisco County under any applicable theory. Under Code of Civil Procedure § 395.5, a "corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability ...

Excerpt: ...iffs Form Interrogatories, Set One, Numbers 2.5, 12.1 And 15.1; Request For Sanctions Against Defendant Ying Shen And Her Attorney Of Record, Stanley Shen, In The Amount Of $1,644.95 Pro Tem Judge Sanford Kingsley, 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 sti...

Excerpt: ...n for violation of the Equal Pay Act. To recover under Labor Code, § 1197.5(a) or (b), Plaintiff must demonstrate that she performed "substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions." (Id; see also Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 323 ["The Equal Pay Act exists to ensure that employees performing equal work are paid equal wages wi...

Excerpt: ... Request For Production Of Documents And For Request For Sanctions. Pro Tem Judge Robert Kane, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, ...

Excerpt: ...red against them on August 23, 2019, is granted. Defendants' showing supports the conclusion that the defaults were taken as a result of mistake, surprise, inadvertence, or excusable neglect because Mr. Quinlan, a non‐lawyer who had never done any business with Liberty Mutual Insurance (which is suing as a subrogee), did not understand the summons or why he was being sued. (Quinlan Decl. 2.) "Because the law strongly favors trial and dispositio...

Excerpt: ...LS DBA CALIFORNIA PACIFIC'S Motion Contesting Determination Of Good Faith Settlement By Non‐Party San Francisco Ear, Nose Throat Medical Group, Inc. As Requested In Defendant Dr. Hartmans Application For Good Faith Settlement Determination Defendant Sutter Bay Hospitals' motion contesting determination of good faith settlement as to San Francisco Ear, Nose, & Throat Medical Group ("SF ENT") is denied. Sutter Bay is correct that by statute, a go...

Excerpt: ...uest For Production From Defendant Volkswagen Group Of America, Inc., And Request For Sanctions. Pro Tem Judge Robert Kane, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the ...

Excerpt: ...annot reasonably obtain evidence that he was exposed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Defendant failed to show that it conducted comprehensive written discovery designed to elicit all the evidence Plaintiff has to support his claim of exposure. (Weber v. John Crane, Inc. (2006) 143 Cal. App. 4th 1433, 1442.) Plaintiff's objection to Exhibits B and ...

Excerpt: ... that he was never personally served with the summons and complaint, and that the papers were left with his wife. (Milholland Decl. 3‐4.) The registered process server in Hawaii who signed the proof of personal service says that he personally served Mr. Milholland after confirming his identity by name. (West Decl. 4.) There is reason to doubt Mr. Milholland's (or his counsel's) veracity. His counsel represented to Plaintiff's counsel that it wa...

Excerpt: ...s or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Defendant does not address Plaintiff's interrogatory response indicating that he purchased asbestos‐containing plumbers putty at O'Connor Lumber Company in Vallejo, California. (Defendant's Ex. B at 3; Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 81 [the court "can infer nothing at all with respect to questions which were neither...

Excerpt: ...dgment on the pleadings as to Plaintiff's first cause of action is denied. A motion for judgment on the pleadings lies only for defects on the face of the complaint‐ extrinsic matters are improper. (Code Civ. Proc., § 438(d).) As such, the Court cannot consider discovery admissions or other evidence controverting the pleadings. (Id.; see Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2018) 7:322.) Defendants' heavy reliance on such ...

Excerpt: ...allegations are not "irrelevant, false, or improper" within the meaning of Code of Civil Procedure, § 436(a). Even if plaintiffs cannot establish respondeat superior liability based on Defendant Derek Chu's conduct, the allegations are proper to support other theories of liability such as aiding and abetting. The allegations are also proper as to other defendants. Any party who contests a tentative ruling must send an email to contestdept302tr@s...

Excerpt: ...tion for mandatory relief (1) is filed within six months of the entry of judgment, (2) is in proper form (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default was "in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (Code Civ. Proc., § 473(b); Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.) Defendant's criminal defense attorney states in his decla...

Excerpt: ...he means by "statistical data." Re timing: Plaintiff shall be prepared to discuss why information from years she was not eligible for promotion consideration is relevant and discoverable. Re geographic scope: the parties shall be prepared to address what decisionmaking functions regarding walking boss promotions are done outside the Port of Stockton, including any situations where the Steering Committee did not adopt a recommendation from the spe...

Excerpt: ...Hague Convention and implementing statutes permit the request for judicial assistance sought. 23 UST 2555, 28 U.S.C. 1781; Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 535 (1987). The Opposition focuses on the delay in seeking the letters of request, but this does not demonstrate why the request should not be granted. Even if the Court were to find a delay, that would not preclude the letters o...

Excerpt: ...y adjudication is denied. Plaintiff failed to maintain its initial burden of production. To prevail on its foreclosure of mechanic's lien claim, Plaintiff is obligated to show the reasonable value of its work/services, because the amount due is the lesser of the reasonable value of the work provided by the claimant and the contractually agreed price. (Civ. Code § 8430(a)(1).) "The actual amount due on the lien presents a question of fact for the...

Excerpt: ...bject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action." (Caiafa Prof. Law Corp. v. State Farm Fire & Cas. (1993) 15 Cal.App.4th 800, 804; see also Mave Enterprises, Inc. v. Travelers Indemnity Co. (2013) 219 Cal.App.4th 1408, 1423 ["In general, 'the pendency of a prior action in a court of competent jurisdiction, predicated on the same cause of action and ...

Excerpt: ...im for punitive damages alleged in First Amended Complaint is granted without leave to amend. 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 inj...

Excerpt: ...er Questions, And For Monetary Sanctions Pro Tem Judge Steven Stein, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed b...

Excerpt: ...) Pro Tem Judge Steven Stein, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide...

Excerpt: ...burden of demonstrating that the convenience of witnesses and the ends of justice will be promoted by transfer. Defendant also failed to post the transfer fees at the time of the filing of the motion under C.C.P. § 399(a). The motion is denied under C.C.P. § 397(a) as Defendant was dilatory in bringing this motion. If a hearing is requested, it will be at 9:30 a.m. A court reporter will not be provided by the court. If any party wishes to have ...

Excerpt: ...t required to attach a copy of the contract or plead its terms verbatim to state a claim. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199 ["a plaintiff may plead the legal effect of the contract rather than its precise language."]; Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640 ["A contract should be pleaded either in haec verba or according to its legal intendment and effect."].) To plead a contract...

Excerpt: ...tiffs, the provision under which Defendant seeks to recover its attorney's fees is a third‐party claims indemnity provision, not a prevailing party attorney's fees clause. By that provision, entitled "WAIVER OF SUBROGATION," "the Shipper agrees to indemnify and hold harmless CAI from any claim or lawsuit arising from the shipment of the Property via CAI, including but not limited to, any action commenced by any insurers or third parties." "A cl...

Excerpt: ...ry 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 conse...

Excerpt: ...mpel arbitration and stay is granted. The broad arbitration agreement with USF applies to plaintiff's claims. USF is clearly entitled to compel arbitration. The non-signatories can also compel arbitration based upon estoppel and agency. "[A] nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claim when the causes of action against the nonsignatory are intimately founded in and intertwined with...

Excerpt: ...laintiff agreed to lend $15,000 to defendant pursuant to a promissory note and plaintiff ultimately lent $16,000 to defendant per the same terms. (Complaint, 7‐8.) Defendant's paltry separate statement of undisputed material facts fails to show that plaintiff's claim "cannot be established" within the meaning of Code of Civil Procedure, § 437c(p)(2). Defendant "does not deny receiving two separate loans from plaintiff, for $13,000 and $3,000" ...

Excerpt: ... is granted. Plaintiffs establish that they are entitled to $177,321.88 in damages based upon defendant's breach of the settlement agreement. Plaintiffs establish a prima facie case for breach of contract and the court overrules defendant's evidentiary objections. Plaintiffs demonstrate personal knowledge regarding the matters in their declarations and the IRS documents are admissible as official acts. (Evid. Code, §§ 452(c) and 1280.) The part...

Excerpt: ...he 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: ...is denied. The motion for summary adjudication is denied as to the Labor Code claims, UCL claim, and breach of the Of Counsel contract claim (causes of action 1, 2, 3, 4, 5, 8, 9, and 10). There is a triable issue of material fact regarding whether the parties had an employment relationship until Mr. Murry's termination on April 10, 2017. On January 19, 2011, Mr. Murry began working for the Law Offices of John T. Hendricks (a sole proprietorship)...

Excerpt: ...th the requisite malice, fraud or oppression to warrant the imposition of punitive damages. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Plaintiff's responses to Defendant's special interrogatories preclude Defendant from successfully invoking the factually devoid prong under Aguilar. The declaration of Donald Trueblood is insufficient to establish that no reasonable jury could find Plaintiff's evidence to constitute cle...

Excerpt: ...ay Action Against Visa. Defendant Citibank, N.A.'s motion to compel arbitration is denied without prejudice. The motion raises an unresolved threshold issue: whether plaintiff may sue using a fictitious name. This is permitted in "extraordinary circumstances," but a "prior court order is required." (Edmon & Karnow, California Practice Guide: Civil Procedure Before Trial (TRG 2016) §6.90.10; see also Starbucks Corp. v. Sup. Ct...

Excerpt: ...tates that it will be performed in accordance with the contract between ADS and the general contractor ("WOJV"). (Short Form Standard Subcontract (preface).) The subcontract further provides that "[a]ny claims resolution process incorporated in the prime contract [the ADS/WOJV contract] shall be deemed incorporated in the Agreement and shall apply to any disputes arising hereunder." (Id. § 12.) Section 17 of the ADS/WOJV contract...

Excerpt: ...#39;s motion for summary judgment is denied. Defendants fail to maintain their initial burden of production. Defendants fail to establish as a matter of law that plaintiff was engaged in a "hazardous recreational activity" within the meaning of Gov't Code § 831.7, which immunizes public entities and their employees from liability for personal injury suffered by a person "who participates in a hazardous recreational activity."...

Excerpt: ...972 provides that "any person, or agent or officer thereof who violates any provision of Section 970 is liable to the party aggrieved, in a civil action, for double damages resulting from such misrepresentations." Thus, the Legislature determined that double damages is the appropriate civil penalty for violations of section 970; it did not also authorize an award of punitive damages. Because the Labor Code expressly provides for the award...

Excerpt: ...dgment and denied plaintiffs' motion for summary adjudication. On August 7, 2019, judgment was entered in favor of defendant. Defendant served plaintiff by mail with notice of entry of that judgment on August 8, 2019. On August 28, 2019, the Court took off calendar plaintiff's motion for reconsideration. (See Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236 ["after entry of judgment, a trial court has no further power to rule...

Excerpt: ... statute" imposing strict liability on the owner of a dog for "the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness."]; CACI Nos. 462, 463.) Neither the dog-bite statute nor any reported California case cited by Plaintiff authoriz...

Excerpt: ...ile in superior court for a provisional remedy, including a writ of application. (Code Civ. Proc. § 1281.8(b).) However, in such circumstances, the moving party must show "that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief." (Id.) The "standards for irreparable harm set forth in [Code of Civil Procedure] section 485.010 provide guidance to the trial courts on the issue of inef...

Excerpt: ...e claim for intentional infliction of emotional distress requires "outrageous conduct" on behalf of the defendant. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) For conduct to be outrageous, it must be "so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Id.) "The tort calls for intentional, or at least reckless conduct - conduct intended to inflict injury or engaged in with ...

Excerpt: ...s procedurally and substantively deficient. Defendants' notice of motion and separate statement of undisputed facts does not comply with California Rule of Court 3.1350. Defendants do not separately state in the notice of motion or in the separate statement what issues or causes of action they seek to adjudicate. (See Cal. R. Ct. 3.1350(b),(h).) Defendants further fail to "plainly and concisely" set forth all material facts they conte...

Excerpt: ...n for attorneys' fee per CCP 425.16 is denied. The unsuccessful arguments made by defendant Twitter, Inc. why the claims alleged by plaintiffs were not covered by the public interest exception to the activity protected by the anti‐SLAPP statute were neither totally and completely without merit nor solely intended to delay this case. Twitter's arguments fall well within the broad range of permissible and non‐ sanctionable arguments tha...

Excerpt: ...es In Support; Declaration Of Timothy H. Stearns; Proposed Order Defendant Mary Franus' amended motion for an award of mandatory attorney's fees and costs is granted in part. Ms. Franus is awarded $10,044.54 in fees and costs, the amount she sought in her initial motion. It is undisputed that, by her attorney, Ms. Franus agreed not to pursue further efforts to seek fees and costs for the services rendered in her successful anti‐SLAPP mo...

Excerpt: ...nsel for defendants Eric Smith and Berman Skin Institute Medical Group, Inc. prior to the hearing. The conditions that Mr. Perez must agree to are: 1) after the first amended complaint is filed, defendants may withdraw their current motion for summary judgment and file one or more motions for summary judgment and/or adjudication on 30 days instead of 75 days' notice; 2) Mr. Perez must serve verified code‐compliant responses without objectio...

Excerpt: ...ded Notice Of Hearing On General And Special Demurrers To Plaintiffs Superseding Third Amended Complaint Defendants Station House C1, LLC, VC Multifamily Portfolio Venture GP, LLC and VC Fund C-1, LLC's demurrer to the first, second and fourth causes of action in the superseding third amended complaint filed by plaintiff Mint Collection - 410-418 Jessie Street Condominium Owners' Association is sustained without leave to amend as to all t...

Excerpt: ...nia 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 Cou...

Excerpt: ...y with the money deposited into Wells Fargo Bank accounts xxxxxx4046 and xxxxxx4826 until entry of final judgment in this action is granted. The motion is unopposed and Thermo Energy has shown that it is likely to prevail on the merits of its fraud claims against Doe defendants based on evidence that Thermo Energy has been the victim of a fraudulent phishing scheme. (Collard Decl. Exh. A‐ E 12). Thermo Energy has also shown that it is likely to...

Excerpt: ...is necessary for his support. Woo fails to cite a statutory basis to exempt the excess and fails to meet his burden under CCP 704.080(e)(4). If Woo is relying on the necessary for support exemption of CCP 706.051(b), that exemption does not apply as this case does not involve an earnings withholding order. Any party who contests a tentative ruling must send an email to [email protected] with a copy to all other parties by 4pm stating, wit...

Excerpt: ...2019, 2018, Line 17, DEFENDANT THE CANADA LIFE ASSURANCE COMPANY, COMPUTER SCIENCES CORPORATION, SWISS RE LIFE & HEALTH AMERICA, INC. MOTION FOR SUMMARY JUDGMENT Or In The Alternative, Summary Adjudication Of Issues.(part 1 of 2) Defendant Canada Life Assurance Company's motion for summary adjudication is denied as to issues 1, 2, and 3. There are triable issues of material fact regarding whether Canada Life breached the contract, breached th...

Excerpt: ...e Section 437c. Plaintiff The People of the State of California, by and through the Commissioner of Business Oversight's motion for summary judgment is GRANTED. Defendant Douglas R. Hanson does not dispute that the court had the authority to amend the duties of the Special Master and the interlocutory judgment and to issue the stay on the litigation against the LLCs. Moreover, the court has inherent power to amend existing orders and to issue...

Excerpt: ...ONG's Motion For Reconsideration And Revocation Of Order Granting Motion To Set Aside Default And Default Judgment. Plaintiffs' motion for reconsideration and revocation of order granting motion to set aside default and default judgment is DENIED. Plaintiffs lacked reasonable diligence in adducing their "new evidence," which was in any event duplicative of an insurer's declination they apparently already knew about. Further, a...