Excerpt: ...for an order directing the filing of an undertaking pursuant to Code of Civil Procedure section 1030 is denied. Section 1030 provides: "When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees." Plaintiffs argue under Code ...

Excerpt: ...g that plaintiff was a victim of sexual battery and defendant is vicariously liable. (Amended Complaint, 16, 21, 23, 37, 38, 40, 41, 42, 44, 49, 63, 65, 68, 90, 94, 95, 96, 97, 99, 108, 109, 11, 114.) A factual issue remains whether plaintiff was sexually battered. Whether plaintiff lacks memory of the specifics of the incident is not dispositive, since it is conceivable that other evidence could support the claim. The allegation that plaintiff's...

Excerpt: ...ut 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 plaintiff is required to prepare a proposed order which states that the motion was not opposed 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:CGC19576379Ca...

Excerpt: ... Civ. Proc., § 430.10(e).) Although Plaintiff did not file and serve her opposition at least 9 court days prior to the hearing, as required, and the Court previously warned Plaintiff that failure to comply with the rules could be grounds for sustaining a demurrer without leave to amend and dismissing the action, the Court decides the demurrer on its merits. The demurrer as to the first cause of action for breach of contract is sustained without ...

Excerpt: ... complaint. Plaintiff did not comply with the prefiling requirement of Code of Civil Procedure, § 425.13. However, such compliance is not necessary where a party pleads a viable elder abuse claim. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 ["Where the gravamen of an action is violation of the Elder Abuse Act, Central Pathology's rationale for applying section 425.13 to the common law intentional torts at issue in that ...

Excerpt: ...eks discretionary relief from default on grounds of "mistake, inadvertence, surprise or excusable neglect." (Code Civ. Proc., § 473(b).) "In order to qualify for relief under section 473, the moving party must act diligently in seeking relief." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) If there is a substantial delay between discovery of the default and defendant's filing a motion for relief under § 473(b), defendant must show a re...

Excerpt: ...Or In The Alternative Summary Adjudication. Defendant State of California's motion for summary judgment is granted against Plaintiff and Cross‐Complainants Cory Lambert and HCC Cable Services. Defendant City and County of San Francisco's motion for summary judgment is granted against Cross‐Complainants Cory Lambert and HCC Cable Services. CCSF's motion against Plaintiff is moot, in light of the parties' notice of settlement. Government Code �...

Excerpt: ...he implied covenant of good faith and fair dealing. Those claims refer to numerous alleged written and oral contracts, including (1) the June 8, 2015 Common Stock Purchase Agreement; (2) oral employment agreements; (3) oral and written agreements by Hemington to serve as Plaintiff's escrow agent; and (4) an October 12, 2017 written agreement between Defendant MacRegen, Inc. and Plaintiff. (FAC 14-16.) Despite this Court's prior order of June 19, ...

Excerpt: ...l 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 § 3294(c)(1).) Absent an intent to injure the plai...

Excerpt: ...Plaintiff has maintained its burden of production on each of its six breach of contract and common counts claims based upon plaintiff's deposition testimony and the declaration of plaintiff's qualified witness (Carol Rowe). The court overrules defendant's objections to the Rowe declaration. Ms. Rowe properly lays her foundation to testify regarding the business records that meet the business records exception of Evidence Code, § 1271. (Rowe Dec....

Excerpt: ...ght of its inherent power to "amend and control its process and orders so as to make them conform to law and justice." (Code Civ. Proc. § 128(a)(8).) On June 2, 2016, this court granted a stay in this case pending final resolution of case No. C081016 in the Third District Court of Appeal. The Third District has finally resolved that appeal. On May 23, 2019, the Third District held that the June 25, 2013 judgment Plaintiff was seeking to appeal w...

Excerpt: ... show that the concrete floor where plaintiff fell constituted a dangerous condition. There is no evidence that the floor was a dangerous condition when it was in its dry, unadulterated state. Plaintiff's expert (Zachary Moore) states that the floor had an average dry slip resistance of .73, which exceeds the industry standard of .5. (Moore Dec., 7‐8.) There is also no evidence that the floor was dangerously wet on the day of the occurrence. Mo...

Excerpt: ...hip with Velofix Bay Area, which is alleged to have distributed or sold the bicycle. (Amended Complaint, 6‐10, 17; see Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1534 ["Beyond manufacturers, anyone identifiable as 'an integral part of the overall producing and marketing enterprise' is subject to strict liability"]; Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 772‐773 [parties subject to stri...

Excerpt: ...f has engaged in "bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay" (Code Civ. Proc. § 128.5(a)) is "measured by the objective reasonable attorney standard." (Mot. at 6.) Defendant is wrong. Section 128.5 was amended in 2017 to specifically overrule San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, which held that "an objective standard applies when determining whether ...

Excerpt: ...tional path is part of the Bay Trail. (Breault Dec., 9-11.) Plaintiff's claim fails because Brisbane is entitled to trail immunity under Gov't Code § 831.4(b). The undisputed evidence shows that the injury occurred because a condition of the trail, i.e., a gap in the concrete, caused plaintiff to fall while he was using the trail to access a recreational or scenic area. (See pictures attached to Plaintiff's Exs. B and D.) Under the circumstances...

Excerpt: ...losure And Defendants Expert Micheal Flemming And For Monetary 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 agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the sti...

Excerpt: ... Kamelia Begley (Continued From 10/17/19). Defendant Delta Dental of California's Motion for Summary Judgement is granted. Assuming Plaintiff Kamelia Begley has provided sufficient evidence to establish the prima facie elements of her discrimination and retaliation causes of action, the burden shifts to Defendant to show a legitimate, non‐discriminatory reason for Plaintiff's termination. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 8...

Excerpt: ...nt 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 despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ. Code ...

Excerpt: ...e settlement agreement and enter judgment is denied. On its face, the motion seeks enforcement of an illegal penalty. A settlement agreement that allows a plaintiff to file a stipulation for entry of judgment upon default by the defendant will not be enforced if the amount of the judgment constitutes an unenforceable penalty because it bears no reasonable relationship to the range of actual damages the parties could have anticipated would flow fr...

Excerpt: ...gender/sexual orientation discrimination, retaliation, failure to maintain environment free of discrimination/harassment, and race discrimination all fail because plaintiffs cannot demonstrate an adverse employment action. Plaintiffs also fail to demonstrate harassment as they cite isolated and sporadic remarks. To establish a discrimination or retaliation claim, "[t]he employment action must be both detrimental and substantial." (Thomas v. Depar...

Excerpt: ...or failure to lodge courtesy copies with the Court. (Local Rule 2.7(B).) Defendant sustained its initial burden via the factually devoid prong of Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. Plaintiff's special interrogatory responses demonstrate that Plaintiff does not possess, and cannot reasonably obtain, evidence that Defendant acted with the requisite malice, fraud or oppression to warrant the imposition of punitive damages. (Exs...

Excerpt: ...Court. (Local Rule 2.7(B).) As to Plaintiff's design defect claims, Defendant failed to demonstrate that it supplied a specific product to the Navy pursuant to a contract and specific MIL‐SPEC that required asbestos between January 1980 through October 14, 1982, as not all packing MIL‐SEPCS specified asbestos as a required ingredient. (Springs Declaration, Ex. H [MIL‐P‐ 17303C].) As to Plaintiff's failure to warn claims, Defendant failed ...

Excerpt: ...Motion is granted as follows: Dr. Ranjithan shall answer questions regarding the 2008 MRI scans, and regarding whether before 2009 anyone had ever criticized his interpretation of a MRI. Dr. Ranjithan shall not be compelled to provide his present or after the fact opinions about the 2008 MRI scan. To clarify: the questions delineated on Plaintiff's Reply Memorandum 2:20‐3:23 are proper because they do not seek Defendant's present or aft...

Excerpt: ...Of Plaintiffs Motion To Compel Further Responses And Responsive <0048005100570056000300 00240051004700030029>or Sanctions HEARING REQUIRED. The LWDA letter and original complaint both treated DDI and LA Driver as a joint employer (both use the singular "Defendant"), but Plaintiffs now confirm they are not asserting a joint employer theory. (Reply at 8). The original complaint but not the LWDA letter use DDI "and/or" LA Drivers. Th...

Excerpt: ...' opposition inexplicably addresses a different case involving a defendant named Estevez who was allegedly driving drunk. (Opp. at 3, 4.) While Taylor v. Superior Court (1979) 24 Cal.3d 890 held that driving a vehicle while intoxicated may in appropriate circumstances evidence a conscious disregard of probable injury to others and be sufficient to warrant an award of punitive damages, there is no such allegation in the instant complaint. Chin...

Excerpt: ...Sixth, Seventh, Eighth, And Ninth Causes Of Action Of Plaintiffs First Amended Complaint Defendant San Francisco Housing Authority's motion for judgment on the pleadings is granted without leave to amend as to the sixth cause of action. "[U]nless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector." (Johnson v. Arvin‐Edison Water Storage Dist. (2009) 174 Cal....

Excerpt: ...in Interest did not succeed on any significant issue in this litigation. (Cf. Save Our Heritage Organisation, 11 Cal.App.5th at 157 [project proponent successfully appealed judgment granting petition for writ of mandate which challenged city's approval of site development permit for park revitalization project]; Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 635-637 [appellants filed initial comp...

Excerpt: ...Britz, Inc. v. Alfa- Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, the court held that a successful party to arbitration is entitled to post-award, pre-judgment interest under Civil Code section 3287, subdivision (a). The Britz court held that a successful party to an arbitration is entitled to "recover damages certain" within the meaning of section 3287, subdivision (a) as of the date the arbitrator renders his or her award. (Id. at...

Excerpt: ...on per Code of Civ. Proc., § 1094.5(h). To obtain such a stay, petitioner must demonstrate that the stay will not cause the public interest to suffer and the agency is unlikely to prevail on the merits. (See Board of Medical Quality Assur. v. Superior Court (1980) 114 Cal.App.3d 272, 276.) In this case, petitioner fails to meet either prong of this test. Given petitioner's history of substance abuse, petitioner fails to show that it would be...

Excerpt: ...sities. (See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115‐1116 ["If [defendant] knew or should have known of his dog's vicious propensities and failed to inform [plaintiff] of such facts, he could be found to have exposed [plaintiff kennel worker] to an unknown risk and thereby be held strictly liable at common law for her injuries. [Citations.] Under such circumstances, the defense of primary assumption of risk would not bar [plaintif...

Excerpt: ... JUDGMENT. (part 1 of 2) Defendants' Cahill Contractors, Inc., 923 Folsom Acquisition, LLC, Align Real Estate, LLC and Pacific Structures, Inc.'s motion for summary judgment is granted. Plaintiff merely demonstrates "abstract negligence" and cannot establish causation as a matter of law. "In cases in which the specific conduct of third parties is brought to the attention of a defendant property owner sufficiently in advance of...

Excerpt: ...complaint was filed on July 3, 2018. By order filed November 5, 2018, the Court sustained Defendant's unopposed demurrer to that complaint, which the Court found to be uncertain, ambiguous and unintelligible, and granted Plaintiff 10 days leave to amend. Plaintiff did not do so. By order filed November 29, 2018, the court granted Plaintiff 60 days leave to file a second amended complaint, due January 31, 2019. The order directed Plaintiff tha...

Excerpt: ..., second, fourth, fifth and seventh causes of action are overruled. The demurrer to the third cause of action is sustained with 20 days leave to amend. The demurrer as to the first cause of action for negligent hiring, training, supervision, and/or retention is overruled. Liberally construing the complaint, Plaintiffs plead sufficient facts to establish a claim. (See Code Civ. Proc., § 452; 2d Am. Compl. 10, 11, 15, 26‐27.) Whether an employee...

Excerpt: ...Plaintiff's demand for "disgorgement" is an improper claim for relief under the UCL. "Under the UCL, an individual may recover profits unfairly obtained to the extent that these profits represent monies given to the defendant or benefits in which the plaintiff has an ownership interest." (Korea Supply Co. v. Lockheed Martin (2003) 29 Cal.4th 1134, 1148 [explaining that only "nonrestitutionary disgorgement of profits" i...

Excerpt: ...ruled. Whether plaintiff can present clear and convincing evidence that Stanley intended for the funds and other property to go to plaintiff and whether the funds are sufficiently identifiable are factual issues that cannot be resolved on demurrer. The face of the complaint does not reveal that the claims are time‐barred. A demurrer can be used only to challenge defects that appear on the face of the complaint or matters outside the pleading th...

Excerpt: ...ouglas Bell does not possess and cannot 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 does not address Plaintiff's interrogatory responses identifying witnesses Pat Tillman and Robert Lee, or his deposition testimony identifying classmates Pat Tillman, Brenda and Tom Mock, Mel Friedman, and Lee Boek. ...

Excerpt: ...espondent received the complete record by August 6, 2019, but the date of receipt is not entirely clear. (AR, 64.) Petitioner argues that respondent's answer was filed more than 30 days later, was untimely under Code of Civ. Proc. 1089.5, and petitioner's allegations are therefore deemed admitted. The court rejects this argument. First, the argument was made for the first time in the reply papers and there was nothing that prevented petit...

Excerpt: ...ment was in writing with the parties' signatures. (See Code Civ. Proc., § 664.6.) A settlement agreement is interpreted according to the same principles as any other written agreement. (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374 ["If the language of the agreement is clear and explicit and does not involve an absurdity, determination of the mutual intent of the parties and interpretation of the contract is to b...

Excerpt: ...claims, as it only limits Plaintiff's remedies, rather than disposing of an entire cause of action, as is required for summary adjudication. Under Cal. Civ. Proc. § 437c(f)(1), a "motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." The doctrines of after‐acquired evidence and unclean hands are "not complete defen...

Excerpt: ...ils to maintain its initial burden of production. The owner‐operator of an elevator is a common carrier and it owes a high duty of care to those that use the machine. (See Treadwell v. Whittier (1889) 80 Cal. 574, 600 [elevator owners "must adopt the most improved modes of construction and machinery in known use in the business, and if they do not, and injury occur, they will be held responsible."]; Brown v. George Pepperdine Foundation...

Excerpt: ...anted only if it completely disposes of a cause of action." A cause of action has no merit if "a defendant establishes an affirmative defense to that cause of action." (Code Civ. Proc. § 437c(o)(2).) A defendant has met that burden if she shows that "there is a complete defense to the cause of action." (Id. § 437c(p)(2).) Defendants here do not meet this burden. They bring their motion based on collateral estoppel, arguing t...

Excerpt: ...s other than the alleged economic damage related to the purchase of the vehicle itself. Plaintiff fails to plead any facts showing that he was exposed to liability for personal damages independent of the economic loss. "The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise." (Robinson Helicop...

Excerpt: ...rry Odbert did not properly file or notice for hearing his purported cross‐petition to correct contractual arbitration award for hearing. However, it raises the same issues as those in his opposition to petitioner's motion, and is denied. Respondent fails to show that the arbitrator exceeded her powers within the meaning of Code Civ. Proc. §§ 1286.2(a)(4) or 1286.6(b). Even if the arbitrator misinterpreted the parties' agreement, to t...

Excerpt: ...ication as to SBS Corporation's cross‐complaint is denied. Five Star failed to maintain its initial burden of production. (See Code Civ. Proc. § 437c(p)(2).) The lynchpin of Five Star's motion is that it was performing its work in the kitchen area and the accident occurred at a different portion of the worksite. Five Star relies on 184:4‐7 of plaintiff's deposition to show that it was working in the kitchen. (Five Star's UMF ...

Excerpt: ... argues it has never refused to arbitrate and that Defendant waived its right to compel arbitration. A party seeking to compel arbitration must "plead and prove a prior demand for arbitration under the parties' arbitration agreement and a refusal to arbitrate under the agreement." (Mansouri v. Sup.Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 830.) However, in certain circumstances, the opposing party's refusal ...

Excerpt: ...parent has pervasive control over subsidiary). (See DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1093-1094.) A plaintiff relying on one of these theories of liability must make a sufficient evidentiary showing-and not merely rely on its allegations-to establish jurisdiction. (See DVI, Inc., 104 Cal.App.4th at 1094.) Here, plaintiff relies on a single e-mail from insurance adjuster Jeffrey Kaiser. (Mannion Dec., Ex. 1.) Plaintiff notes...

Excerpt: ...8.7 is granted. No opposition was filed. Defendants served Plaintiff with the sanctions motion by mail and email on November 27, 2018, more than 21 days before filing it, as required by the safe harbor provision of section 128.7, and Plaintiff did not withdraw his complaint. (Dees Dec. 2 & Exs 1, 2.) Defendants' declarations and the Court's docket, of which the Court takes judicial notice, establish that the allegations and claims present...

Excerpt: ... a proper evidentiary showing. Defendant has not presented any admissible evidence that would enable the Court to determine "a rough approximation of plaintiff['s] total recovery and the settlor's proportionate liability." (Tech‐Bilt, Inc. v., Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499.) "If 'there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant...

Excerpt: ...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 author...

Excerpt: ...rnia 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 Co...

Excerpt: ...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 par...

Excerpt: ...y adjudication is continued per Code of Civil Procedure section 437c(h). Plaintiff has made a good faith showing by affidavit that facts essential to justify opposition to the motion may exist but cannot be presented absent a continuance. In particular, Plaintiff's pending discovery requests and related motions to compel seek to obtain evidence bearing directly on Defendants' motion, which turns in large part on such issues as whether Blo...

Excerpt: ...d fourth causes of action for breach of fiduciary duty, waste, and unjust enrichment of the second amended complaint is sustained with 20 days leave to amend as to the fourth cause of action and overruled as to the remaining causes of action. The second amended complaint sufficiently pleads that the individual defendants breached their fiduciary duty to nominal defendant Venture Rebel and engaged in waste of its corporate assets by self‐dealing...

Excerpt: ...l or written and the terms of the contract that were allegedly breached. The motion is denied as to the breach of implied covenant cause of action. The contract sufficiently alleges a contractual relationship based on the employer/employee relationship and cross-defendant's "unauthorized" acceptance of excessive compensation sufficiently alleges a breach of an implied covenant that thwarts R&G's benefit of the bargain (Cross-Compl...

Excerpt: ...rtially decide this matter. Defendants' motion for summary adjudication is granted and denied in part. The motion for summary adjudication is denied as to issues 1‐11. The motion is procedurally infirm under CCP § 437c(f)(1) because it does not completely dispose of the breach of fiduciary duty causes of action. For example, issue 5 relates to the allegation at paragraph 38 of the Amended Complaint that there was a breach of fiduciary duty...

Excerpt: ... public entity with a timely written claim for damages before filing suit against it. (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 652; Gov't Code §§ 905, 911.2, 915.) Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to a plaintiff's maintaining an action against a defendant, and thus, an element of the plaintiff's cause of action. (K.J. v. Arcadia <001500...

Excerpt: ...m. Defendant City and County of San Francisco's motion for reconsideration of the January 9, 2019 order denying the City's motion for summary judgment is denied. There is a triable dispute whether plaintiff Adrienne Hogan was a "shift operator" as that term is used in 22 CCR 63770. Ms. Hogan says she wasn't and the City says she was. While Ms. Hogan's statements that she was not a shift operator were not explicitly made in...

Excerpt: ...e & Supply, Inc. failed to sustain its burden of demonstrating that Plaintiffs do not possess and cannot reasonably obtain clear and convincing evidence that Defendant Valley Pipe & Supply, Inc. acted with the requisite malice, fraud, or oppression to warrant the imposition of punitive damages. (See Decl. Scott R. Herndon, Exhibit E, Exhibit F, Exhibit G, Exhibit H.) The burden of production "should not shift without stringent review of the d...

Excerpt: ...ed below. The criteria for a section 1021.5 award have been satisfied. The litigation resulted in the enforcement of an important right affecting the public interest, conferred a significant benefit on the general public or a large class of persons, and the necessity and financial burden of private enforcement are such as to make the award appropriate. (Code Civ. Proc. § 1021.5.) The Court of Appeal's holding in its published opinion that fo...

Excerpt: ...e complaint filed by plaintiff Michael Keck is sustained without leave to amend as to both causes of action. The face of the complaint shows that the statute of limitations on both of Mr. Keck's claims began to run no later than April 26, 2016, the day Mr. Keck obtained a default judgment against Ms. Coleman‐Curry, which is more than two years before this case was filed on May 14, 2018. The two year statute of limitations in CCP 335.1 and/o...

Excerpt: ...age in the October 17, 2018 minute order that suggests that the court granted summary judgment in favor of cross-defendants ITC Financial Licenses, Inc. and The Bancorp Bank on Mr. Schuldiner's UCL claim based on an incorrect understanding of the UCL standing requirement. The court apologizes for the sloppy language in that minute order and takes this opportunity to clarify that summary judgment was granted in favor of the cross-defendants on...

Excerpt: ...rties in the same lawsuit, the amendment need not relate to claims or defenses originally pleaded. PG&E has not established that it would be prejudiced by the amendment, because discovery has not been completed, and the currently assigned September 3, 2019 trial date is not imminent. In any event, there is a strong likelihood that the litigation will be stayed as a result of PG&E's anticipated bankruptcy filing. Any discovery disputes or moti...

Excerpt: ...#39;S Application To Reopen Discovery Responses And Production Of Documents And Allow For Extension For Exchange Of Pretrial, Motions In Limine, Expert Disclosures And Depositions. Pro Tem Judge Paul Renne, 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...

Excerpt: ...lied covenant of good faith and fair dealing sounds in contract. (1 Witkin, Summary of California Law (2018) §824.) Moreover, the implied covenant may be pled in the alternative to breach of contract, as it adequately has been here. (See Racine v. Laramie, Ltd. (1992) 11 Cal.App.4th 1026, 1031‐32 (conduct "not technically transgressing the express covenants"); Cmplt. 18‐ 20, 22‐23, 27, 29‐30, 42, 46‐47, 50, 53‐54.) The fraud ...

Excerpt: ...d. The default and default judgment are not void under CCP 473(d) because plaintiff properly substitute served the person "apparently in charge" of Bridge and Pioneer's office within the meaning of CCP 415.20(b). Bridge and Pioneer fail to show that the default and default judgment were the result of a lack of actual notice. They also fail to show that they are entitled to equitable relief or that their due process rights have been vi...

Excerpt: ... California (1990) 220 Cal.App.3d 1503, a California lottery ticket retailer (a delicatessen owner) brought an action against the state, claiming she was entitled to a $100,000 award by reason of her possession of a winning ticket. Her 17-year-old employee had stolen several tickets, scratched them to remove the coating, discovered one was a $100,000 winner, and gave the ticket to his mother, who submitted it to the Commission for redemption. The...

Excerpt: ...nvenient forum is denied. Mr. Alvarez did not file a motion to quash service of summons on the ground of lack of jurisdiction of the court over him or a motion to stay or dismiss the action on the ground of inconvenient forum within the time allowed for filing a response to the complaint, as required by Code of Civil Procedure section 418.10(a). Instead, on November 9, 2018, he filed an answer to the complaint. He did not file the instant motion ...

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

Excerpt: ...fect. (2) The demurrer is overruled on its merits. Jeld‐Wen's demurrer to the first cause of action for negligence is overruled. Plaintiff sufficiently alleges a cause of action for negligence. (See Complaint 1‐20.) Jeld‐Wen's demurrer to the second cause of action for products liability is overruled. Plaintiff sufficiently alleges a cause of action for products liability. (See Complaint 3‐4, 21‐36.) Jeld‐Wen's demurrer to...

Excerpt: ... complaint is sustained as to the first cause of action for strict liability manufacturing defect, the second cause of action for negligence in manufacturing, and the third cause of action for failure to warn, with 30 days leave to amend. As pled, the manufacturing defect and negligent manufacturing claims are conclusory and do not allege sufficient ultimate facts to provide support for the assertion that Defendants violated federal law. The cour...

Excerpt: ...ony From Defendant Marcos Alvarez Casteneda Regarding Same Pro Tem Judge David McDonald, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the he...

Excerpt: ...s failed to allege facts showing a special relationship that would support a duty on the part of defendant C. Mondavi & Family to protect plaintiff from harmful conduct of third parties or that any breach of such duty was a substantial cause of plaintiff's injuries. (See Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013 ["A complaint which lacks facts to show that a duty of care was owed is fatally defective . . . . In general, one ...

Excerpt: ...Default Judgment, If Entered: Ccp Sec. 473(B). Defendant Anthony K. Ngai's motion to set aside the default entered on June 21, 2018 is denied. Mr. Ngai has not made a showing that the default was taken against him through his mistake, inadvertence, surprise, or excusable neglect. There is undisputed evidence that after he was personally served with the summons and complaint, Mr. Ngai retained counsel, who specifically informed plaintiff's...

Excerpt: ... he do anything sexual to you?"), she also testified that Mr. Hermogeno continued to ask her inappropriate personal questions, refused to allow Ms. Aung to visit the restroom as needed, and followed her to the restroom. Similarly, Ms. Aung testified that after a 2005 incident in which Kevin Tucker hugged her tightly and was suspended as a result, he, too, followed her to the restroom. Contrary to defendants' characterization of the conduc...

Excerpt: ...d Sixteenth Street Hotel, LLC's motion for summary judgment is denied. Plaintiff has identified facts‐the absence of a second handrail and defendants' failure to provide adequate illumination of the stairway‐from which a reasonable jury could infer that a dangerous condition existed and was a substantial factor in bringing about Mr. O'Connell's injuries. In Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, in contrast, defe...

Excerpt: ...gations). 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 despicable conduct that is carried on by the defendant...

Excerpt: ...alment and prayer for punitive damages is GRANTED. A defendant shifts the burden of production to plaintiff if it can "present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854‐55.) Defendants showed via plaintiff's discovery responses his lack of evidence that FCA US knew of the defect in the Totally Integrated Power Module (TI...

Excerpt: ...bitration Against Defendant Derek Schulze Pending The Outcome Of This Action Pursuant To Ccp Section 1281.2(C) Defendant Derrek Schulze's motion to dismiss the arbitration is DENIED, as the court lacks jurisdiction to grant such relief. (Titan/Value Equities Group, Inc. v. Sup. Ct. (1994) 29 Cal.App.4th 482, 489.) Schulze's motion to stay the arbitration under CCP §1281.2(c) pending the outcome of this court case is GRANTED. The at‐iss...

Excerpt: ...itration and to stay litigation pending arbitration is GRANTED. Per the Dispute Resolution Protocol (DRP) in the TriNet Terms and Conditions Agreement (TCA), the Federal Arbitration Act applies to any dispute arising out of plaintiff's employment with ReadiSuite. DRP §9(a) expressly identifies ReadiSuite as a third‐party beneficiary that may enforce the arbitration provision. Defendants did not waive arbitration; they pled an arbitration a...

Excerpt: ... against him is granted. Due process demands, and the doctrine of extrinsic mistake permits, the vacation of the default and default judgment based on the undisputed fact that Mr. Schanzer had no knowledge of this case until November 2018 and that service by publication occurred without plaintiff Zakaria Saidin exhausting all possible sources to be able to serve Mr. Schanzer personally or by substitute service. Mr. Schanzer has shown that due to ...

Excerpt: ...Defendant Pour Guys SOMA LLC's motion for summary judgment or alternatively, summary adjudication of six specified issues is denied in its entirety. The doctrine of primary assumption of the risk does not apply to the facts of this case as a matter of law. Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148 explained that the doctrine applies to sporting and "recreational activities." The purpose of the doctrine is "to avoid chilling...

Excerpt: ...ir motion to stay this action based on inconvenient forum is granted. This case is stayed pending the completion of proceedings in Florida on the claims alleged by plaintiffs Joseph Mizrachi and JAL Group, L.P. Plaintiffs have demonstrated that defendants have sufficient minimum contacts with California to warrant specific jurisdiction over defendants in this case. Defendants purposefully availed themselves of the benefits of California through t...

Excerpt: ...ahan. Michael Callahan has not made a general appearance and thus may still contend that he is not amenable to personal jurisdiction in California for this case. Plaintiffs Elliot Taylor and Ron Taylor have not shown that Michael Callahan has sufficient contacts with California to warrant the exercise of personal jurisdiction over him for this case either based on general or specific jurisdiction. The Taylors have shown that they validly served C...

Excerpt: ... L.P., and Barcelo Crestline Corporation's motion to strike portions of the complaint filed by plaintiffs Marion, Brian and Sharri Marcin is: a) granted without leave to amend as to the words "and physical injuries, all of" and "physical and" in lines 22 and 23 on page 7; b) granted without leave to amend as to the prayer for punitive damages but without prejudice to seeking leave to amend to add a prayer for punitive damages ...

Excerpt: ...s entirety. WFI's request for judicial notice of portions of plaintiff Maria Delgado's deposition testimony is denied. While the parties appear to view the judicial notice issue as either the content of all deposition testimony of a party that is inconsistent with the party's pleading is judicially noticeable or the content of a party's deposition testimony is never judicially noticeable, this court adopts the more nuanced and bet...

Excerpt: ...l four causes of action. Judge Chan's order filed May 29, 2018 does not bar any of the four claims alleged by Ms. Huang and Ms. Duong in this case either based on res judicata or collateral estoppel. Res judicata is inapplicable because this case does not involve either the same cause of action or remedy that was involved in the family law case. Collateral estoppel is inapplicable because none of the issues essential to plaintiffs prevailing ...

Excerpt: ...as to all three causes of action. Ms. Carlin adequately alleged that she was subject to unfavorable disparate treatment based on her gender, disability and age including the termination of her employment, which is sufficient for a FEHA discrimination claim. Ms. Carlin adequately alleged that her employment was terminated because she complained to Mr. Haschka that she had been unfavorably disparately treated due to her gender, which is sufficient ...

Excerpt: .... Boland fled the scene of the accident "when he knew that he had driven his vehicle into ¿. Leila J. [and] ¿ observed her laying in the crosswalk injured and in pain" suffices to allege malice as that word is defined in Civil Code 3294(c)(1). Mr. Boland's argument that his alleged fleeing of the scene was not an "injury‐producing event" is neither established by the language of the complaint nor supported by common sense ...

Excerpt: ...ky To Provide Further Responses At His Continued Deposition And For Sanctions. Defendant Nina Vaness' motion to compel plaintiff Timothy Galusky to provide further responses at his continued deposition and for monetary sanctions is denied and Mr. Galusky's request for monetary sanctions is also denied. None of the six sets of deposition questions identified in Ms. Vaness'statement of items in dispute seek sufficiently probative inform...

Excerpt: ...credits, tax statutes are strictly construed in favor of the taxpayer. (Taiheyo Cement U.S.A., Inc. v. Franchise Tax Board (2012) 204 Cal. App. 4th 254). The City's argument that the waiver of penalty provision in SF Business and Tax Regulations Code 6.17‐4 should not be construed in plaintiffs' favor because that provision waives a penalty and does not impose a tax lacks merit. The City makes a distinction without a difference and case...

Excerpt: ...sole cause of action for fraud in the inducement in the cross‐ complaint filed by defendant and cross‐claimant Balaji Srinivasan is overruled. California substantive law, not Delaware substantive law, governs the issue of the sufficiency of the reliance allegations in Mr. Srinivasan's fraud claim. Per Ron Greenspan Volkswagen, Inc. v. Ford Motor Land Development Corp. (1995) 32 Cal.App.4th 985, Mr. Srinivasan has adequately alleged that h...

Excerpt: ... 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 autho...

Excerpt: ...es County Superior Court and all transfer costs must be paid by plaintiff Nicole Tate‐ Naghi. Venue is presumptively proper in the county where any of the defendants resides. (CCP 395(a).) The first amended complaint alleges that all of the defendants reside in Los Angeles County. Ms. Tate‐ Naghi has alleged transitory causes of action for professional negligence and breach of fiduciary duty that do not involve the internal affairs of the tru...

Excerpt: ...as to the second and fifth "causes of action." Defendant John Vannuchi's demurrers are otherwise OVERRULED. Breaches of contract and fiduciary duty are adequately pled, based in part on Vannuchi's signing the "acknowledgement by counsel" to hold settlement proceeds on plaintiff's behalf. The complaint also alleges Vannuchi had possession of plaintiff's funds but did not pay them, which adequately pleads conversion....

Excerpt: ...s Bank of the West's burden to establish sufficient minimum contacts for the court to exercise jurisdiction over Whitehead. (See Mihlon v. Sup. Crt. (1985) 169 Cal.App.3d 703, 710.) For specific jurisdiction, "the crucial inquiry concerns the character of defendant's activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the part...

Excerpt: ...anything other than fair and impartial in deciding this case. Defendant The Regents of the University of California's demurrer to the first four causes of action in the first amended complaint filed by plaintiff Dara Auyeung is off calendar as moot as to the first cause of action for violation of Labor Code section 970, sustained with twenty days leave to amend as to the second cause of action for fraud, and overruled with as to the third and...

Excerpt: ...d as to the first cause of action for breach of contract by Applied Underwriters Captive Risk Assurance Company, Inc. and overruled as to the second and third causes of action for breach of contract and quasi‐contract by California Insurance Company. The Reinsurance Participation Agreement is illegal and unenforceable as a matter of law because it is a collateral agreement that modifies the obligations of the insured and was not filed with the ...

Excerpt: ...an Francisco LLC's motion for summary judgment and alternative motion for summary adjudication as to plaintiff Norma Sanchez‐Zapata's first amended complaint are denied in their entirety. As to each cause of action, there is triable dispute whether Roka Akor's alleged legitimate business reasons for the adverse employment actions were pretextual. The temporal proximity of the adverse employment actions and the arguable contradiction...

Excerpt: ...Ponist's petition to appoint an arbitrator is granted. Marilyn O'Toole is appointed as the parties' arbitrator. The first backup arbitrator is Richard Idell. The second backup arbitrator is Bruce Methven. Respondents were properly served with the petition per CCP section 1290.4 (a) because the parties' agreement provides that arbitration shall be conducted under the rules of the AAA and rule 43 of the AAA Commercial Arbitration Ru...

Excerpt: ... days leave to amend. Mr. Akrami has failed to allege facts showing a special relationship that would support a duty on the part of defendant Pernord Ricard USA to protect Mr. Akrami from harmful conduct of third parties and that any breach of such duty was a substantial cause of Mr. Akrami's injuries. (See Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013, ["A complaint which lacks facts to show that a duty of care was owed is fata...