Excerpt: ...where a proposed cross‐complaint is based on facts put in issue by the complaint and answer. (Danzinger v. Peebler (1948) 88 Cal.App.2d 307, 310.) Plaintiff Ross Moore has not demonstrated any prejudice in granting leave to Defendant to file the cross‐complaint. This motion was made only eight months after the complaint was filed, six months after answer filed, and only weeks after obtaining the documents and testimony needed by Defendant to ...

Excerpt: ...efault And Vacate Default Judgement Pursuant To Ccp 473 (B); Memorandum Of Points And Authorities In Support Of Defendants Motion, Declaration Of Andrew Quan; Exhibit A; [Proposed] Order; [Proposed] Answer Defendant Asfaw Tedla's motion to set aside default and vacate default judgement pursuant to CCP § 473(b) is granted. Since any doubts as to the application of section 437 are resolved in favor of the party seeking relief, the court finds ...

Excerpt: ...lifornia has a liberal policy of allowing leave to amend and where undue prejudice to opposing parties can be avoided, denial of leave to amend that prevents a meritorious cause of action constitutes an abuse of discretion. (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031.) Ledcor's did not unreasonably delay in bringing this motion as it had no reason to sue ACCO prior to the September 28, 2018 announcement that ACCO's in...

Excerpt: ...The allegation that Mike was a contracting party is a legal conclusion and the more specific allegations indicate that only MJ Tile, Marija Jozinovic's sole proprietorship, was the contracting party. (See pars. BC-1, 3, and Ex. A of the Amended Cross-Complaint.) SUSTAINED WITHOUT LEAVE TO AMEND as to Mike Jozinovic's cause of action for common counts. (See Harris v. Kessler (1932) 124 Cal.App. 299, 303.) SUSTAINED WITHOUT LEAVE TO AMEND a...

Excerpt: ...ant Gloria Lopez is sustained with twenty days leave to amend. Among other possible reasons, the negligence and breach of contract claims are deficient because the delayed discovery allegation fails to allege any facts showing that Ms. Lopez could not "through the use of reasonable diligence" discovered the facts on which those claim are based within the one year of their occurrence to avoid the claims being time‐barred by CCP 340.6. Am...

Excerpt: ...39;s motion for summary judgment is granted. The undisputed evidence shows that placing Mr. Ilaoa's feet in the water basin was an inseparable part of the pedicure process and the professional services exclusion applies as a matter of law. (See 16 CCR §§ 977; 980.1‐ 980.4.) The footbath was a professional service in the sense that it constituted an aspect of the nail salon profession and was done for financial gain. There is no ambiguity ...

Excerpt: ... demurrer to all six causes of action in the second amended complaint filed by plaintiffs J Garcia Carrion, SA and CIV USA, Inc. is sustained without leave to amend as to the first, second, fourth, and fifth causes of action for breach of contract, promissory estoppel, injunctive relief, and specific performance and off calendar as moot as to the third and sixth causes of action for unfair business practices and conversion. Plaintiffs have not al...

Excerpt: ...tion for violation of the FEHA and sustained without leave to amend as to the sixth cause of action for violation of Labor Code 226(a). While no reported case has been cited that permits verification of a DFEH administrative complaint by someone other than the claimant or her counsel, no reported case has been cited that holds that the only persons who can verify a DFEH administrative complaint are the claimant and her counsel. As Keenwawa acknow...

Excerpt: ... and this case is staying pending the conclusion of arbitration proceedings. The delegation clause in the parties' agreement clearly and unmistakably states that the arbitrator will decide "the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision." (December 2015 TSA, Section 15.i.). Plaintiff Shaun Smith does not substantively challenge the delegation clause. Therefore, the...

Excerpt: ...ted and this case is stayed pending conclusion of the arbitration proceedings. Unlike Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1574, Ms. Whetstone has affirmatively asserted that she is a signatory to an existing valid written agreement containing an arbitration clause. Since plaintiff Eric Alexander's complaint seeks to enforce the terms of this written agreement as a third party beneficiary, Mr. Alexander is equitably esto...

Excerpt: ...chols' motion to compel third party witness John Montgomery to answer questions and to produce documents pursuant to deposition subpoena is granted. Mr. Montgomery is required to attend a further session of his deposition not exceeding three hours and may not refuse to answer any questions on the grounds of attorney‐client privilege or attorney work product regarding his communications with and work for defendant Mark Strehelow pertaining t...

Excerpt: ...piracy and denied as to all other causes of action. Mr. Dyer has not satisfied his first prong burden of showing that the claims arise from activity protected by the anti‐SLAPP statute as to the first through eighth causes of action. Those claims arise from conduct allegedly committed by Mr. Dyer prior to his termination from ELI. While this lawsuit was proposed in emails in an effort to induce Mr. Dyer to settle his DLSE claims, the first thro...

Excerpt: ...HRG Employer, LLC's motion to compel arbitration is granted. Plaintiff Patricia Kubichek entered into an arbitration agreement with defendants and the claims Ms. Kubichek alleges in her complaint are "employment‐related disputes" as that phrase is defined in the parties' arbitration agreement. Ms. Kubichek's arguments based on her limited proficiency in English lack merit. (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4...

Excerpt: ...er‐Silverado Fund 1, LLC, the second amended complaint should be stricken since it exceeds what was permitted by the court. No later than December 31, 2018 M‐S Fund may, at its option, either file a third amended complaint that is identical except for its title to its proposed second amended complaint for which it received permission to file or file a motion for leave to file a third amended complaint that differs from its proposed second ame...

Excerpt: ... by Randall Whitney is denied as to all three causes of action. The recent decision of Templo v. State of California (2018) 24 Cal.App.5th 730 requires denial of MTC's motion. The plaintiffs in Templo alleged a claim that a state statute was unconstitutional because it constituted an improper "tax" and was not enacted by the two‐thirds vote required by Article XIII of the California Constituiton and named the State of California as ...

Excerpt: ...n or before January 17, 2019 in light of the remainder of this tentative ruling. Per Jay v. Mahaffey (2013) 218 Cal App. 4th 1522, the court exercises its discretion to consider the declaration of Mr. Seybold submitted with the reply papers. Because the court will consider Mr. Seybold's declaration, defendants are entitled to respond in writing to that declaration and the court is amenable to continuing the hearing to give defendants sufficie...

Excerpt: ...Labs, Inc., Jonathan Su, and Robert English's joinder in Defendants Trinet Group, Inc. and Trinet HR III‐A, Inc.'s motion to compel arbitration is denied. The Dispute Resolution Protocol in TriNet's terms and conditions requires Pilot AI to seek to compel arbitration under its own employment agreement with Plaintiff Rachel Moore. The DRP indicates that separate agreements between its customers and its customer's employees (such ...

Excerpt: ...horities In Support Thereof; Declaration Of Trevor R. Witt, Esq. Defendant Transportation Brokerage Specialists, Inc's motion to compel arbitration is granted. This case is stayed pending the completion of the arbitration of plaintiff John Reed's individual, victim‐specific claims. Mr. Reed has not shown that Transportation Brokerage waived its right to seek arbitration of Mr. Reed's victim‐specific claims. Transportation Brokerag...

Excerpt: ... 2018, Line 7, (2 of 2) Defendant David King-Stephens Motion For Summary Judgment <00440057004c0052005100 00480056001e00030030[emorandum Of Points And Authorities; Separate Statement Of Undisputed Material Facts; Declaration Of Robert Fisher, M.D.; Declaration Of Kristen A. Pico; Supporting Evidence (For Tentative Ruling Only) By October 19, 2015 at the latest, plaintiffs were aware of the return of the tumor and Dr. King- Stephens may have wrong...

Excerpt: ...mplaint filed by plaintiff John Phelps is denied as to both causes of action. Defendants fail to satisfy the first prong of the anti‐SLAPP analysis. Mr. Phelps alleges that defendants illegally recorded his telephone conversations. This conduct does not involve protected activity within the meaning of CCP 425.16(e)(4). Defendants' recording of business conversations regarding a Canadian dog food company also does not concern the public inte...

Excerpt: ...of all pleaded facts is assumed, (2) if even one of several grounds for relief is properly pled, the demurrer is denied as to a cause of action and (3) defendants may not adduce or argue extrinsic evidence in a demurrer. As to the complaint's numbered causes of action: 1‐3: Breaches of contract and the implied covenant, and inducing breach, are all more than adequately pled. 4: Fraudulent inducement is pled with adequate specificity. 5‐6,...

Excerpt: ...as follows: First, the San Francisco Rent Board's determination that April 15, 2014 was the date the subject unit was withdrawn from the rental market is judicially noticed. This establishes the withdrawal date as a matter of law. Second, defendants argue that the filing deadlines here are ones of repose, rather than limitation. However, the opinions relied on do not construe California law and are not in the landlord‐tenant context. Furthe...

Excerpt: ...to amend as to all three causes of action. Plaintiff CDC San Francisco LLC has not alleged, nor does it appear that it is able to allege, ultimate facts showing that any of its claims are not time‐barred. The August 24, 2018 Order limited leave to amend to two areas and required specific allegations for both areas. The allegations in the third amended complaint fall well short of what was required to successfully avoid the bar of the statute of...

Excerpt: ...ing the 401K account were plainly part of the family court action (FDI‐17‐787579). (Marital Settlement Agreement ("MSA"),VI.B(b); Qualified Domestic Relations Order, 2:11; 2:20‐21.) Mr. Meyers must return to family court for clarification of any issues pertaining to the 401K account. The family court expressly reserved its jurisdiction to resolve such matters per section X of the MSA. This civil court cannot undermine the family cou...

Excerpt: ...amend as to the first cause of action for breach of contract by AUCRA and overruled as to the second and third causes of action for breach of contract and quasi‐contract by CIC. The RPA 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 California Department of Insurance as required by Insurance Code11658 and 10 CCR 2268(b)). While Nielsen ...

Excerpt: ...per Forum Or, In The Alternative, Compel Arbitration And Stay Civil Action; Defendants Candex Solutions, Inc. and Jeremy Lappin's alternative motion to compel arbitration and stay this case pending the completion of arbitration proceedings is granted. The Referral Agreement contains an enforceable arbitration clause and plaintiff David Sullivan is obligated to arbitrate his claims in New York City pursuant to JAMS' rules. Mr. Sullivan'...

Excerpt: ... 1048b. Cross‐complainant Scott Smith's motion to vacate protective order and to serve a subpoena on Google to determine the true identity of the person(s) sending emails under the name of James Johnson is granted. The order filed September 4, 2018 granting cross‐defendant Entrepreneur Media, Inc.'s ex parte motion for a protective order is now vacated and Mr. Smith is granted permission to take all necessary steps to serve his propos...

Excerpt: ... review of the supplemental papers filed by the parties, the court remains of the view that Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254 controls this case and requires granting of defendants' motion. Plaintiff Oolong, LLC has the burden of demonstrating sufficient minimum contacts to warrant the exercise of general or specific jurisdiction. Oolong's evidence fails to show jurisdiction over VCS or Mr. Zuccarelli, who ar...

Excerpt: ...) (For Tentative Ruling Only) Unlike the driver in Lobo v. Tamco (2010) 182 Cal.App.4th 297, Mr. Gaurano was not on call for customer requests and could not have been unless he activated the Lyft platform. (Lobo, 182 Cal.App.4th at 301-03 (holding that because the driver drove his vehicle home with an expectation that he might need to respond in-person to customer complaints, the driver was still acting within the scope of employment and vicariou...

Excerpt: ...w Firm LLC's motion for summary adjudication as to the second, third and fourth causes of action for conversion, constructive trust and fraud in the complaint filed by plaintiff Russell Stanaland is denied as to all three causes of action. The motion is denied as moot as to the conversion and constructive trust claims because Mr. Stanaland dismissed those claims. The motion is denied as to the fraud claim because L&F failed to maintain its su...

Excerpt: ...r 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 a...

Excerpt: ...igned 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 em...

Excerpt: ...n Friday, December 7, 2018, Line 6, (2 of 2) Defendant David King-Stephens, M.D.S' Motion For Summary Judgment Or, In The Alternative, Summary Adjudication Of Issues; Memorandum Of Points And Authorities; Separate Statement Of Undisputed Material Facts; Declaration Of Robert Fisher, M.D.; Declaration Of Kristen A. Pico; Supporting Evidence (For Tentative Ruling Only) Lastly, plaintiffs fail to present sufficient evidence showing that Dr. King...

Excerpt: ...; a trial has already been held in this case. (See id. at sub. (e).) Defendants' common law motion for judgment on the pleadings is GRANTED and DENIED as follows: The motion is DENIED as to the breach of contract cause of action. Plaintiffs sufficiently plead the terms of the contracts according to their legal intendment and effect. To plead a contract claim according to its legal effect, the plaintiff should allege the making and then procee...

Excerpt: ...��defendant Michael Guta's motion for summary judgment and alternative motion for summary adjudication on his complaint for breach of contract and common counts and Casey Securities, LLC's first amended cross‐complaint for rescission, breach of contract, and fraud are denied in their entirety. There are triable disputes regarding the amount of money owed to Mr. Guta and whether the parties had a good faith disagreement about that sum. (...

Excerpt: ...d on the assumption that the claims alleged in the second amended complaint are not implied contractual indemnity claims, yet liberally construing those claims, they are implied contractual indemnity claims. The economic loss doctrine does not apply to contractual claims. The joint obligation for an implied contractual indemnity claim can be based on the contractual obligation that a subcontractor owes to an owner. (See, e.g. Loduca v. Polyzos (2...

Excerpt: ...aintiffs Seventh Cause Of Action Plaintiff Richard Denton's motion for reconsideration of the court's oral ruling striking defendant Barbara Hale from the seventh cause of action for unlawful harassment in his second amended complaint is denied. The court will address the merits of this motion based on the September 25, 2018 hearing since no written order has yet been filed as to the ruling sought to be reconsidered. The EEOC documents ar...

Excerpt: ...ned as to all ten causes of action without leave to amend. The third cause of action for violation of the Ellis Act and the fifth cause of action for violation of section 37.9A of the San Francisco Rent Ordinance are both time‐barred. Government Code section 7060.2 and Rent Ordinance section 37.9A(d) establish a limitations period for bringing a claim regarding failure to offer to re‐rent the premises of three years from the date of withdrawa...

Excerpt: ...oussos' second amended complaint is overruled in its entirety. Per Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 662, in the absence of ownership or possession, the existence of a duty to protect from criminal acts of third parties "will depend upon the proprietor's actual or apparent control of the adjacent property." While taken in isolation allegations about a commercial benefit from use of adjacent property, a &...

Excerpt: ...t title is sustained as to the quiet title claim against Mr. Cai and overruled as to all other claims. Plaintiff Liz Digdigan acknowledges that her quiet title claim does not lie against Mr. Cai. Except for her quiet title claim against Mr. Cai, all claims are sufficiently alleged. Liability against Mr. Cai is adequately alleged based on Mr. Cai allegedly being the alter ego of Fremont Homes. Liability against Fremont Homes is adequately alleged ...

Excerpt: ...,307.60 in attorney's fees and $1,547.73 in costs. In the court's ever‐evolving effort to determine a reasonable fees award in a lemon law case, after review of the papers filed by the parties and court's own experience, the court has determined that the hourly rates and time claimed by Mr. Sutton's counsel are excessive for a case of this kind. Moreover, for a simple case nine different timekeepers is excessive. The high end of...

Excerpt: ...n of production per CCP section 437c. The Privette doctrine does not apply to a non-hirer subcontractor such as Skanska in this case. The doctrine is based on notions of fairness. "[A]n independent contractor's employee should not be allowed to recover damages from the contractor's hirer, who 'is indirectly paying for the cost of [workers' compensation] coverage, which the [hired] contractor presumably has calculated into the ...

Excerpt: ...ered against him on February 13, 2018 is continued to January 17, 2019 to give the parties an opportunity to meet and confer and, if necessary, file supplemental papers regarding the amount Mr. Del Olmo will be required to pay plaintiff Leslie Lapayowker as a condition of setting aside the September 27, 2018 order. The court finds that there is sufficient change of circumstances since the September 27, 2018 order was issued to warrant reconsidera...

Excerpt: ...otion for attorney's fees and costs per CCP 425.16 is granted in small part. Ms. Gatti is awarded fees and costs of $20,688.70, comprised of $20,600 in fees and $88.70 in costs, against cross‐ complainant Loop A1 Labs Inc. Ms. Gatti is entitled to a fee award for her successful striking of Loop's cross‐claim for malicious prosecution. That award is limited to fees that were reasonably incurred. Based on the court's own experience ...

Excerpt: ...le in federal enclaves including the Presidio. There is no federal law applicable to federal enclaves that conflicts with California's law authorizing the DMV's administrative suspension of Mr. Englert's driver's license. The fact that Mr. Englert was cited and may be prosecuted for violating a federal regulation rather than a California statute prohibiting driving while intoxicated or driving with an excessive blood alcohol level...

Excerpt: ... Compelling Complete Response Of Jay Chen, Person Most Qualified For Defendant Beyond Group, Llc., To Deposition Question; Request For Monetary Sanctions Against Beyond Group, Llc Attorneys Bledsoe Diestel Treppa Crane, Llp (Part 1 of 2) Pro Tem Judge Jeff Wohl, 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 p...

Excerpt: ...ated as an invitation to reconsider the September 26 order per Le Francois without compliance with the requirements of CCP 1008 and, as so treated, is granted. The September 26 order is vacated and a new order will be entered denying the petition for enforcement of the arbitration award. The MOU unambiguously provides that review of a Sheriff's disciplinary decision that results in a decision by the reviewer to impose lesser discipline is not...

Excerpt: ...ary adjudication is denied as to the first cause of action for premises liability and granted as to the second and third causes of action for gross negligence and negligence per se. Based on the video and the other evidence presented by Ms. Grubbs‐Ferguson, there is a triable dispute whether Safeway had constructive knowledge of the spilled liquid. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1212 ("plaintiffs may demonstrate the storekee...

Excerpt: ...petition is unverified and she fails to provide a declaration in compliance with CCP §2015.5 attesting to lack of notice. Respondent's proof of service of the hearing notice ‐ executed under penalty of perjury ‐ and the payment stub Wicker attached to her petition indicate that the notice was served at the correct address (255 San Carlos St., San Francisco, CA 94110). (AR 000007.) Wicker filed no memorandum of points and authorities, whi...

Excerpt: ...tisfied the three‐part Stiles test and thus is entitled to equitable relief on the ground of extrinsic mistake. (See Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147‐48.) (1) O'Toole's verified proposed answer establishes a "meritorious case" under Stiles. (Id.) (2) O'Toole has satisfactory excuses for failing to defend against the lawsuit: his confusion regarding summons papers due to five different lawsuits involving hi...

Excerpt: ...nia courts absent an express statement to that effect in the arbitration agreement. (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 174.) Here, the arbitration agreement's reference to JAMS Rule 25 does not call for FAA review of an award, because that rule refers to the FAA or applicable state law, and no preference for federal law is indicated. (See Mave Enterprises, Inc. v. Travelers Indemnity Co. (2013) 219 Cal.App.4th 1408, 1427-30.) The ...

Excerpt: ... is not limited to "false advertising, bad faith insurance practices and the like." Operating a commercial building without taking statutorily required fire safety measures is a business practice that may allow for §17200 liability, and that is adequately pled. (See FAC 15‐16.) Any party who contests a tentative ruling must send an email to [email protected] with a copy to all other parties by 4pm stating, without argument, the...

Excerpt: ...r Entity Judgment Debtor; Memorandum Of Points And Authorities; Declaration Of Scott R. Albrecht Plaintiff Filament Lighting, LLC's motion to amend judgment to add Archipelago Lighting Tec, Inc. as a judgment debtor is GRANTED. Archipelago Tec is a successor corporation or mere continuation of judgment debtor Archipelago Lighting, Inc. (See Wolf Metals, Inc. v. Rand Pacific Sales, Inc. (2016) 4 Cal.App.5th 698, 705.) Archipelago Tec's cre...

Excerpt: ... give plaintiff Thomas Sassani an opportunity, if he can do so in good faith, to allege in a UCL claim that Mr. Boms obtained money or property from Zozi as a result of an unlawful activity that Mr. Boms committed against Zozi. While Mr. Boms is technically correct that Mr. Sassani needed to obtain and did not have permission to add Mr. Boms to the UCL claim, there is no doubt that, had such permission been sought, it would have been granted, and...

Excerpt: ...ied. The court did not consider the complaint filed by Ms. Montes in federal court or the misdemeanor complaint filed in San Mateo Superior Court. Neither Miller v. Department of Corrections (2005) 36 Cal. 4th 446 nor Proksel v. Gattis (1996) 41 Cal. App. 4th 1626 requires an allegation of more than a single consensual relationship to support an actionable paramour harassment claim. (Negrete v. Meadowbrook Meat Co. (C.D. Cal. 2012) 2012 WL 254039...

Excerpt: ... default entered against him on February 13, 2018 is continued to December 19, 2018 to give the parties an opportunity to meet and confer and, if necessary, file supplemental papers regarding the amount Mr. Del Olmo will be required to pay plaintiff Leslie Lapayowker as a condition of setting aside the September 27, 2018 order. The court finds that there are sufficient changes of circumstances since the September 27, 2018 order was issued to warr...

Excerpt: ...ed Complaint Defendants' demurrer to all six causes of action in the first amended complaint is sustained with twenty days leave to amend as to the first, second, third, and fourth causes of action for breach of contract, conversion, injunctive relief, and accounting and overruled as to the fifth and sixth causes of action for violations of the Corporations Code and Church Constitution. Plaintiffs have not adequately alleged standing for thei...

Excerpt: ...days leave to amend as to all causes of action alleged against Wells Fargo. The demurrer is sustained on the grounds that the first amended complaint as a whole and all causes of action alleged therein are uncertain. The first amended complaint, like the initial complaint, is largely unintelligible, contains many irrelevant and/or vague and ambiguous allegations, alleges many repetitive conclusions without providing ultimate facts, and violates t...

Excerpt: ...ames Austin and Raymond Schreiber is denied as to both causes of action. The motion is an impermissible motion for reconsideration of the March 12, 2018 order denying defendants' first motion for judgment on the pleadings. The request to take judicial notice of Ms. Mwangi's declarations is denied since the content of those declarations is subject to dispute by the parties. Plaintiffs allege sufficient ultimate facts to support both of the...

Excerpt: ...ings, that policy does not apply to this motion. Mr. Gante has known about the facts supporting his request for punitive damages since before this case was filed and apparently has desired to make such a request since the outset of this case. Yet he twice moved for and received a continuance of the trial without moving to amend his complaint to seek punitive damages and now seeks to do so less than two weeks before trial. Granting this motion wou...

Excerpt: ...of excusable neglect, surprise, mistake, and inadvertence warranting the setting aside of the default per CCP section 473(b). The default should never have been requested and, once entered, cross‐complainant Gloria Lopez should have stipulated to it being vacated. Because Ms. Uchiyama had served a demurrer to the cross‐complaint notwithstanding that it had been rejected for filing and Mr. Uchiyama had also served a notice of unavailability, c...

Excerpt: ...d by the three Retired Officers in their petition for writ of mandate for violation of Government Code 3304(b) is sustained with 20 days leave to amend. If they can do so in good faith, the Retired Officers have leave to allege specific facts that the administrative appeal afforded by the Police Commission was futile and did not comport with due process and/or the requirements of section 3304(b). For purposes of this demurrer, the court assumes t...

Excerpt: ...ed that the matter go to arbitration, which further shows that the parties contemplated binding and final arbitration. Mr. Khan fails to establish that Mr. Mytels needed to file his petition to confirm in federal court. 9 USC 9 provides that "If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made." (emphasis added.) Tha...

Excerpt: ...Of Plaintiffs Complaint; Memorandum Of Points And Authorities; Proposed Order; And Declaration Of James F. Peterson Regarding Compliance With Meet And Confer Requirements Of Code Of Civil Procedure 435.5 (A) Defendant Brooks Brothers Group, Inc.'s motion to strike portions of the complaint is granted as to all references to death and wrongful death and denied as to the allegations and prayer for punitive damages. Plaintiff Hiram Borunda ackno...

Excerpt: ...ined without leave to amend as to the eighth and ninth causes of action for intentional interference with contract and overruled as to the sixth tenth, eleventh and twelfth causes of action for negligence, declaratory relief, equitable indemnity and comparative indemnity. Because HWI (as the lessee and beneficiary of all the construction and improvement work) is a third beneficiary of the contracts it allegedly interfered with, HWI is not a stran...

Excerpt: ...ot alleged, nor does it appear that she can allege, sufficient ultimate facts to show that the alleged misconduct of Rick Yang is attributable to NEA. The factual allegations of the complaint (as opposed to the conclusions of law therein) show that at all times Mr. Yang participated in any of the conduct for which Ms. Moore seeks to hold NEA liable, Mr. Yang was acting in his capacity as a board member of defendant Pilot AI, Inc., not as an agent...

Excerpt: ...dgment on the MBC Parties' cross- complaint is granted. The motion is not premature because the MBC Parties have not shown that any new facts alleged in plaintiff's third amended complaint would provide any new legal or factual bases on which the MBC Parties would seek relief from Broadway or that Broadway's burden on this motion will be materially affected unlike in Perry v. Atkinson (1987) 195 Cal.App.3d 14. The settlement agreement...

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

Excerpt: ...signed 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 e...

Excerpt: ...ner, and Sanaz Ebrahimi's ("Defendants") motion to compel arbitration is GRANTED. In addition, this case is stayed pending the conclusion of the arbitration proceedings. Defendants alleged wrongful acts occurred after Ms. McCluskey had consented to AirBnB's Terms of Service (TOS), version 6, which contains an arbitration clause. By agreeing to submit disputes about the "enforcement, interpretation or validity" of the agree...

Excerpt: ... accommodate plaintiff and ultimately terminated her employment because of her pregnancy. (See Amended Complaint, pars. 18-23.) These facts plead discrimination. The court overrules the demurrer to the harassment claim. Paragraphs 17 and 35 sufficiently allege harassing conduct. A factual issue remains whether defendant's conduct was sufficiently severe, pervasive, or hostile to constitute harassment. The court overrules the demurrer to the f...

Excerpt: ... 405, 407, n.1.) Defendant does not contest that venue is proper is San Francisco County and it has failed to meet its burden under CCP section 397(c) that changing the venue would be in the interests of justice or for the convenience of the witnesses. (Smith v. Stanford Research Institute (1963) 212 Cal.App.2d 750, 754 ("[A] corporate defendant seeking a change of venue has the burden of negating the propriety of venue laid on all possible g...

Excerpt: ...to arbitrate plaintiff Stefan Stefanov's claims. The language of the 2016 arbitration agreement is materially different from the language of the 2015 employment agreement with respect to the employee's right to opt out of arbitration. The language of the 2015 employment agreement states that Stefanov may "opt out of arbitration" if he does not wish to participate without any qualification of that right. The 2016 arbitration agreem...

Excerpt: ...r leave to file first amended answers is GRANTED. Courts exercise liberality in permitting amendments at any stage of the proceeding and particularly use a liberal policy in allowing amendments to answers. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159 ("In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense.").) While Defendants appe...

Excerpt: ...kins' motion to compel arbitration and to stay proceedings is GRANTED. The arbitration agreement covers Plaintiff Denis Neema's claims and the agreement is not unconscionable. The agreement clearly emphasized the ability to opt out of arbitration and seven days was sufficient time for Plaintiff to carefully review the four‐page document. The requirement that the arbitration proceedings be confidential is not unconscionable. (Sanchez v. ...

Excerpt: ... doctrines of unclean hands/economic duress. Aamco (as assignee) is subject to any defense that defendants could have raised against the assignor. (See YDM Management Co. Inc. v. Sharp Community Medical Group, Inc. (2017) 16 Cal.App.5th 613, 621 fn. 3.) In addition, Aamco is subject to the unclean hands defense based on the alleged wrongdoing of its agent, Mr. O'Donnell. (See Restatement 2nd of Contracts § 336(4).) Here, Mr. O'Donnell...

Excerpt: ...2) And To Stay Action Pending Arbitration (Ccp 1281.2) Defendants International Fraternity of Delta Sigma Pi, Inc. and Gamma Omicron's petition to compel arbitration and to stay action pending arbitration is GRANTED. The circumstances surrounding plaintiff's signing of the membership agreement do not exhibit procedural unconscionability. While plaintiff was young and not legally trained, the agreement was a single page and plaintiff had s...

Excerpt: ...18 are set aside per CCP 473.5 and 473(b). Mr. Tan has shown that he did not have actual knowledge of this lawsuit in time to file a timely responsive pleading and that, even if there were communications directed to him about the lawsuit prior to entry of the default, his failure to realize the nature of those communications and his failure to respond to the complaint was a result of mistake, inadvertence, surprise and/or excusable neglect. Plain...

Excerpt: ...y judgment or alternatively summary adjudication on the claims alleged against it in the third amended complaint is denied in its entirety. LHJS fails to maintain its burden because it does not address the alter ego allegations against it. There is also a triable issue whether LHJS negligently converted the premises per Orange Grove Terrace Owners Ass'n v. <0003001400150014001a00 00500052005100560048[ declares that LHJS performed no contracto...

Excerpt: ...case, defendant Ally Financial, Inc. and all persons and entities working in concert with them are restrained and enjoined from refusing to accept any payments on‐line from any persons who have previously signed up and been approved to make on‐line payments due to any disputes with those persons or Ally having been contacted by any attorneys on behalf of those persons without providing 30 days advance notice directly to those persons and stat...

Excerpt: ...39;s) motion for summary adjudication is DENIED as to the first cause of action for dangerous condition of public property and the fourth cause of action for breach of mandatory duty. Plaintiff does not oppose BART's motion as to the second or third causes of action ‐ for vicarious liability for the act or omission of a public employee and a contractor ‐ so summary adjudication is GRANTED on those causes. BART has failed to adduce suffici...

Excerpt: ...rding whether Hambrecht had timely notice. In Green I, Green sought to recover against the UFL for breach of his written employment contract and for fraud. While Hambrecht was not a named defendant in Green I, he participated in the action and numerous paragraphs of the complaint in Green I allege that Hambrecht made representations that he would fund the UFL and Green's salary. (Green I Complaint, pars. 15, 18, 19, 32, and 35.) Those represe...

Excerpt: ...ission in the third amended complaint (TAC) filed by plaintiff Kinson Wong individually and derivatively on behalf of R & G Executive Lounge, Inc. is OVERRULED in its entirety. As Judge Kahn has already ruled in a related case, Kinton Wong has standing to bring both a derivative and direct action against defendants. Fraudulent inducement is pled with the required specificity and is not time barred. Kinson Wong sufficiently pleads facts to show th...

Excerpt: ...eferred to as BAGS) motion for summary adjudication on the first through third causes of action in the second amended complaint filed by plaintiff and cross‐defendant C.I. Energia Solar S.A, BAGS's third affirmative defense in its answer and on BAGS' sixth cause of action for disgorgement in its cross‐complaint is denied in its entirety. BAGS fails to satisfy its initial summary adjudication burden. BAGS has not shown that CIE engaged...

Excerpt: ...ng any of the grounds in CCP 473(b) to set aside the default and default judgment. Assuming without deciding that plaintiff Jennifer Young served as counsel for defendants at one time, that fact does not, without more, preclude Ms. Young from maintaining this lawsuit or require that the default and default judgment be set aside. Any party who contests a tentative ruling must send an email to [email protected] with a copy to all other part...

Excerpt: ...te 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 Court Judg...

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

Excerpt: ...RES ASSOCIATION'S Motion In Support Of Gianmatteo Costanza, Andrew Swerdlow, David Fuchs, Anthony Dauria And Casa Dolores Association Motion To Bifurcate. Plaintiffs Gianmatteo Costanza, Andrew Swerdlow, David Fuchs, and Casa Dolores Association's motion to bifurcate is granted in part. The court characterizes the motion as one to de‐ consolidate case 550040 from case 549556 and, as so characterized, the motion is granted. The two cases...

Excerpt: ...oup's motion for summary judgment is granted. Defendants present competent evidence showing that they did not have actual or constructive notice of Ms. Bush's violent propensities and defendants did not breach any sort of duty that they owed to plaintiff as a tenant. (Cochico Dec., pars. 11 ‐ 17.) In opposition, plaintiff fails to create a triable issue of material fact regarding the claims asserted against defendants. There is no evide...

Excerpt: ...ts 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 ...

Excerpt: ...To Compel Binding Arbitration And Stay Proceedings. Defendants Trustees of the Laborers' Training And Retraining Trust Fund and Laborers' Community Service and Training Foundation's motion to compel arbitration of the first through sixth causes of action alleged in the first amended complaint filed by plaintiff Travis Brown is granted and the seventh cause of action alleging a PAGA claim is stayed pending the conclusion of the arbitra...

Excerpt: ...Services, Inc. are taxed as not recoverable per the combination of CCP 685.040 and Civil Code 1717.5 and in the court's discretion because the total fees already included in the judgment are greatly disproportionate to the non‐fees part of the judgment. King Security is entitled to the $835.90 in other costs claimed on that memorandum. Ms. Laguna's request to tax the fees claimed in the prior memorandum of costs after judgment is untime...

Excerpt: ...urned to Mr. Dal Bello, while the cash may be retained by the police. The People have shown that there is probable cause to believe that the cash was furnished in exchange for controlled substances or intended to be used to facilitate a violation of the narcotics laws. The change in the law regarding marijuana since the seizure of the cash does immunize the cash from forfeiture. Mr. Dal Ballo cites no authority, nor could the court locate any aut...

Excerpt: ... Court to conclude that defendant is a predecessor‐in‐interest to Eureka Boiler Works, as identified in the Compromise and Release at issue. Thus defendant did not demonstrate that it is a "Releasee" under the terms of that agreement. Plaintiff's objections to paragraph 4 of Diane Hauger Bonomini's declaration are sustained. If a hearing is requested, it will be at 9:30a.m., Hon. Lynn O'Malley‐Taylor presiding. A court r...

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

Excerpt: ...is overruled as to both causes of action. Mr. Davis adequately alleged that (1) Dr. Crane made three distinct preoperative statements which were false; (2) Dr. Crane knew the statements were false or acted with reckless disregard as to their truth; (3) he made them to induce Mr. Davis to consent to the surgery; (4) Mr. Davis justifiably relied on Dr. Crane's misrepresentations; and (5) as a result, Mr. Davis was injured. Stone v. Foster (1980...

Excerpt: ... by Bankers attributable to that summary judgment must be returned to Bankers. The declaration of Francisco Betonio shows that at time when Nicholas Ebert was in custody in Contra Costa County, Mr. Betonio informed a Contra Costa County deputy that there was an outstanding warrant from San Francisco on Mr. Ebert, yet Mr. Ebert was released from custody by Contra Costa County officials. While this case concerns Penal Code 1305(c)(3) rather than (c...

Excerpt: ...uttar's demurrer to the fraud cause of action is SUSTAINED with 20 days leave to amend. Paragraph 47 of the second amended complaint refers to defendants and staff making misrepresentations. Plaintiff should clarify whether it was only the receptionists making the misstatements or whether Dr. Buttar and Ms. Carter also did so. Plaintiff also appears to be alleging that defendants acted fraudulently with regard to Shadow's medical conditio...

Excerpt: ...e condition that Mr. Dullea or his counsel pay an additional hour of Dr. Kondrashov's time for wasting that time. Mr. Dullea may take Dr. Kondrashov's deposition of no more than an hour on a mutually agreeable date and time at a location of Dr. Kondrashov's choosing, but before the deposition begins Dr. Kondrashov must receive a check for 2 hours of his time. Mr. Dullea has shown a strong need for the deposition, his counsel acted dil...

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...