Excerpt: ...021, Order granting specially appearing defendants Harvey's Tahoe Management Company, Inc. and Harvey's Tahoe Management Company, LLC (Harveys)'s motion to quash service of summons for lack of jurisdiction. CCP sec. 916(a) provides, in pertinent part, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby . . ." The purpose of the automati...

Excerpt: ...ER TECHNOLOGIES, INC., RASIER, LLC, RASIER-CA, LLC) motion for summary judgment is denied as a matter of law. Defendants owed Plaintiff a general duty of care in choosing where and how to offload the passengers. There exists a triable issue of material fact whether defendants breached that duty by dropping its passengers off in a "no stopping/tow away" zone. (Stephenson Decl., Ex. 2 - Eric Samuel Depo., 31:6-9; 245:2-17; 245:19-22; Stephenson Dec...

Excerpt: ...n 683.170 "explicitly states that the 30‐day period for bringing a motion to vacate renewal of a judgment commences upon service of the notice of renewal. Defendant's actual knowledge of the judgment [does] not govern the timeliness of [her] section 683.170 motion." (Fid. Creditor Serv., Inc. v. Browne (2001) 89 Cal.App.4th 195, 204 (internal citations omitted, emphasis added).) Defendant meets her burden to prove that she was never served with...

Excerpt: ...e 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 appears b...

Excerpt: ...relief as to the following issues: 1. The Court cannot find that the manner of notice proposed (e.g., first‐ class mail only) is the best notice practicable under the circumstances. Notice shall be provided to class members both by first‐class mail and, where available, by email. Defendant shall provide all known email addresses of class members to the settlement administrator with the other information required for class notice. 2. Class mem...

Excerpt: ...emplary/punitive and treble damage claims from second amended complaint" (SAC) is denied. Comcast asserts that the SAC "pleads no facts whatsoever to support a claim for exemplary/punitive or treble damages." (Memo. 2:1‐2; see also Not. 3:6‐7.) To the contrary, the SAC's factual allegations are adequate for the pleading stage. Whether, as Comcast doubts, plaintiff will eventually be "able to succeed" on his punitive damages prayer is a questi...

Excerpt: ...on To Disqualify Attorney Micah Jacobs As Counsel For Automata Research Institute is denied. The party seeking disqualification has the burden of proof. (See Lynn v. George (2017) 15 Cal.App.5th 630, 638.) Defendants do not contend that attorney Jacobs has a conflict of interest based on prior or current representations. Rather, they contend that he cannot act for Automato Research Institute, Inc. because he was retained by persons that cannot pr...

Excerpt: ...Defendant Avande, Inc.'s motion to compel acknowledgment of satisfaction is denied. Defendant relies on Wade v. Schrader (2008)168 Cal.App.4th 1039, for the proposition that "a motion to compel acknowledgment of satisfaction of a judgment... is an entirely acceptable procedure for balancing an offsetting judgment." (Id. at 1048‐49.) However, Wade makes it clear that an entry of an offset is within the equitable discretion of this Court. (Wade, ...

Excerpt: ...ployer. (Cmplt. 3:13‐17.) Duty of Care. Common law and Civil Code 1714 impose duties of care. Cal‐OSHA regulations may establish duties in negligence actions against third parties. (Elsner v. Uveges (2004) 34 Cal.4th 915, 924.) Nibbi's role in controlling the construction site is not adjudicated at the pleading stage. Damages. The complaint adequately pleads damages against Nibbi. (See, e.g., 1:22‐24, 3:12‐4:19, 7:21‐26, 8:15‐21, 10:1...

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

Excerpt: ...r default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Code of Civ. Proc. section 473.5.) Here, the proof of service declares that on October 28, 2019, the registered agent for service of process, Mr. Stephen Jones, was personally served with the summons and complaint. (Kerfan Decl. Exhibit 1.) Defendan...

Excerpt: ...srepresentation) and 5 (fraud) are pled with insufficient particularity. I disagree; the SAC adequately pleads "how, when, where, to whom, and by what means the representations were tendered." (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645.) Miranda's alleged representations as to insurance are adequately pled and the representations are not limited solely to insurance in any event. Agency theories are pled against Dudas. For the 9:30 a.m. Law & M...

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

Excerpt: ...ntiff's hand, injuring it. (PSO pp. 7, 12.) Defendant's motion has one ground: she owed "no duty" to plaintiff because the "primary assumption of risk doctrine" applies. (Not. 2:1‐2; Memo. 5:1‐ 3.) Under that doctrine, a person has no duty to protect others from risks of "inherently dangerous" recreational activities. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; see also Knight v. Jewett (1992) 3 Cal.4th 296, 314‐...

Excerpt: ...he City and County of San Francisco that began in July 2014 and ended in June 2019; this was followed by a CBA that began in July 2019 and ends in June 2022. Both CBAs provide for grievance arbitration. In 2014, the City agreed with the union to pay $4,000 bonuses for four job classifications in which retention was problematic. (Opp. 4:9‐18.) The City says these bonuses ended in 2019 when it moved employees into new classifications. (Id. at 4:2...

Excerpt: ...p.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."].) The court agrees that the proposed defenses are conclusory. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [answer must plead ultimate facts just like a complaint]). But instead of denying amendment, the better practice is to allow amendment and s...

Excerpt: ... collisions with two separate Uber drivers. One got out on summary judgment. The other Uber driver was allegedly in a transit lane, so had some potential liability, which he and Uber have now settled with plaintiff after negotiations by experienced counsel. Once, as here, a settlor makes a preliminary showing, a non‐settling party has the burden of demonstrating that a settlement is "so far 'out of the ballpark'" as to be inconsistent with the ...

Excerpt: ...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 appears...

Excerpt: ...s the sole cause of action for breach of contract is barred by the statute of limitations under Code of Civil Procedure section 337. The statute of limitations on an action for breach of contract for a written contract is four years. (Code Civ. Proc. sec. 337(a).) "It is elementary that a statute of limitations does not begin to run until the cause of action accrues." (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040.) In this ca...

Excerpt: ...ion And Stay Proceedings; Memorandum Of Points And Authorities In Support Thereof; Declaration Oren Dagan Defendants S O D Home Group, Inc. and Oren Dagan's motion to compel arbitration and stay is denied. "[T]he party moving to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate." (Hotels Nevada v. L.A. Pac. Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; see also Rosenthal v. Great Western Fin. Securi...

Excerpt: ...) \ (1 of 2) AKRO Real Estate Partners LLC's ("AKRO") motion for leave to intervene is granted. "The purpose of intervention is to promote fairness by involving all parties potentially affected by a judgment in the litigation." (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1199.) Moreover, the Court liberally construes CCP sec. 387 in favor of intervention. (Id. at 1200 ["And section 387 should be liberally construed in ...

Excerpt: ...e have now produced more than 76,000 pages of documents and extensive privilege logs. In a stipulation and order, the parties and this court agreed that the latter would address two remaining disclosure issues. Those two limited issues involved documents withheld by the department's civil rights enforcement section (CRES) regarding (1) Bakersfield police and (2) juveniles. (1/10/22 Stip. & Order 2:15‐ 3:12; Pltf. Memo. 6:25‐7:10.) As to the f...

Excerpt: ...rough three (wrongful termination/retaliation). To establish a prima facie case of retaliation, plaintiff must show (1) he engaged in a protected activity, (2) defendant subjected him to an adverse employment action, and (3) a causal link between the two. (See St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.) It is well settled that "[t]he pleadings delimit the scope of the issues on a summary judgment motion. [cite] A party may not op...

Excerpt: ...ty has the burden of demonstrating that a settlement is "so far 'out of the ballpark'" as to be inconsistent with the law's equitable objectives. (Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499‐500.) Experienced counsel for Sam's and plaintiffs negotiated a $300,000 settlement. No evidence suggests collusion, fraud or tortious conduct. (Id.) A co‐defendant argues that plaintiffs once demanded $34 million in damag...

Excerpt: ...d of Trustees of the California State University's ("CSU") motion for summary judgment is granted. The Court finds all of Plaintiff's causes of action to be time‐ barred. Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing ("DFEH") on August 2, 2017 and DFEH issued a right‐to‐sue notice the same day. (Herrera Decl., Ex. B.) California Government Code section 12965 requires employees to file a civil...

Excerpt: ...ff Jane Doe entered into the "Arbitration/Mediation Agreement," as part of Defendants' new hire paperwork. (Montano Decl. 7, Exh. 1.) The Agreement provides in relevant part, "disputes that may arise in connection of the undersigned ("Employee") with Na Hoky, Inc. its predecessors, successors, affiliates, parents, subsidiaries, divisions, related companies, current and former directors, officers, representatives, and employees (collectively calle...

Excerpt: ... not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; Litt v. Eisenhower Medical Center (2015) 237 Cal. App. 4th 1217, 1224 [when the cost item appears proper on its face, the burden is on the objecting party to show the costs to be unnecessary or unreasonab...

Excerpt: ..., 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 consent to si...

Excerpt: ...did not enter into an attorney-client relationship with Defendants with respect to the escrow account." (February 8, 2022 Order Sustaining Defendants' Demurrer to Plaintiffs First Amended Complaint in Part with Leave to Amend.) In any case, even if the Court were to assume the existence of an attorney-client relationship, Plaintiff fails to state facts sufficient to constitute her remaining causes of action for breach of fiduciary duty and breach...

Excerpt: ...AND, THOITS LAW) motion to compel arbitration and stay are granted. "Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.'" (Theresa D. v. MBK Senior Living LLC (2021) 73 Cal.App.5th 18, 24.) Here, defendants demonstrate that Ms. Kwan executed the arbitration agreement. (Holland Decl., pars. 3‐4, 7‐8.) Ms. Kwan ...

Excerpt: ... he was not a party to the contract and did not employ Plaintiff. However, Plaintiff has cured the defects in his second amended complaint by alleging facts regarding Young's liability under the alter ego doctrine. Plaintiff now alleges: there is a unity of interest between the entity defendants and Young; Young intended to use the corporate entities as a shield against personal liability; Young dominated the entity defendants; Young and the enti...

Excerpt: ...ys Corrected First Amended Verified Complaint. Defendant's Motion to Strike as to the claim for prejudgment interest is denied. Defendant moves to strike Prayer for Relief, paragraph 2 in its entirety: "an award of interest accrued as of the date of the judgment at the rate of three percent (3%) per month; ". (CFAVC, Prayer for Relief 2.) "The test for determining certainty under section 3287(a) is whether the defendant knew the amount of damages...

Excerpt: ...owever, a motion for summary judgment must be directed to the entire action. (CCP 437c(a); Edmon and Karnow, California Practice Guide: Civil Procedure Before Trial (TRG 2016) 10:1.) On March 4, 2022 (the day plaintiff's opposition is dated), Garda filed a "notice of errata," which is actually a putative amendment. This "notice" is rejected for three reasons. First, Garda did not seek leave to file it. Second, plaintiff did not have a full and fa...

Excerpt: ...ned with leave to amend. WNC's demurrer is sustained with leave to amend as to Bryant Street's third cause of action for "breach of contractual duty to properly investigate a claim" and fourth cause of action for "breach of contractual duty to pay a covered insurance claim." Bryant Street is granted leave to allege the existence of a valid contract between the parties. The cross-complaint incorporates 352 pages of insurance policies (see Exhibit ...

Excerpt: ...nd For Sanctions. 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 proceed before the Judge Pro Tem...

Excerpt: ...ads solely a representative PAGA action. (Second Amended Complaint, par. 13.) Plaintiff does not allege any individual claims. The waiver of representative PAGA claims in an arbitration provision‐ claims that are on behalf of the State of California‐is unenforceable and the Court of Appeal has held that the U.S. Supreme Court has yet to abrogate that rule. (See Winns v. Postmates Inc. (2021) 66 Cal.App.5th 803; Iskanian v. CLS Transportation ...

Excerpt: ...lliam Redmond's motion for summary judgment is granted. Defendants' motion is granted as to Plaintiff Mohan Sivasankar's first cause of action for intentional misrepresentation. Plaintiff fails to create a triable issue of material fact as to whether anyone made an intentionally false misrepresentation to him. Plaintiff contends that before he signed the CBN employment agreement, human resources representative Colleen Moran made two misrepresenta...

Excerpt: ...equirements 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 t...

Excerpt: ...f to prove effective service. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439‐40.) A process server claims she personally served Zazai in Oakland on December 16, 2021, but Zazai declares under penalty of perjury that he was in Afghanistan at the time, which is supported by his airline tickets and passport. (Zazai Decl. 4‐8.) Plaintiff alternatively now claims "substituted service" ‐ apparently on a roommate ‐ under CCP...

Excerpt: ...ier). Defendants argue that the $142,060 lodestar is unreasonable and that a multiplier is unwarranted. I disagree on both counts. Based on my 36 years of experience with appellate work in the San Francisco Bay Area, $142,060 for taking a case of this magnitude through appeal is reasonable. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Defendants' only specific complaint is "duplicated efforts," because more than one plaintiff attorney strategized...

Excerpt: ...ruled. Liberty's demurrer is overruled as to Bryant Street's fourth cause of action for "breach of contractual duty to pay a covered insurance claim." The cross-complaint alleges the existence of a valid contract, breach of that contract by Liberty, and resulting damages to Bryant Street. The reservation of rights letter does not contradict Bryant Street's allegation that Liberty improperly withheld payment for construction delays allegedly cause...

Excerpt: ...ublic Works Code imposes a duty on the moving parties to "maintain in good repair and condition" the area where plaintiff Patricia Umanzor allegedly sustained injuries for which cross‐ complainant City and County of San Francico seeks indemnity from the moving parties. Section 706 also provides for a cause of action against adjacent property owners for their failure to maintain the sidewalks and sidewalk areas as well as a cause of action to th...

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

Excerpt: ...tion to sever or bifurcate the issue of duty is denied without prejudice to re‐raising the motion with the trial judge. The trial judge is in the best position to determine whether and, if so, how the trial should be divided into phases. Moreover, the relief sought by PG&E is not clear and arguably did not provide adequate notice to plaintiff Robert Lambing to enable him to meaningfully oppose the motion. In its notice of motion and initial mem...

Excerpt: ...f action for failure to engage in the interactive process, and the fourth cause of action for failure to accommodate and granted as to the second cause of action for retaliation and the fifth cause of action for failure to prevent harassment and discrimination. Liberally construed, the declaration of Dr. Marvin Pietruszka provides sufficient admissible evidence to create a triable disputes on the discrimination and failure to accommodate claims. ...

Excerpt: ...pany's motion for summary judgment is denied and its alternate motion for summary adjudication is granted as to the third cause of action in the complaint for statutory elder abuse (issue 3 in the notice of motion) and denied as to all other issues sought to be summarily adjudicated (issues 1-2 and 4-5 in the notice of motion). There are disputed issues of fact precluding entry of judgment in favor of First American as to whether First American o...

Excerpt: ...e to in a proposed order that he submits to the court on this motion. Those conditions are: 1) no later than March 25, 2022 Mr. Forman must provide verified responses to deem‐served discovery requesting: a) all facts in support of the new claims; b) the names and contact information for each person with knowledge of those facts and specification of which facts each person knows; and c) identification of all documents reflecting those facts and,...

Excerpt: ... alternative motion to stay. Relying on Montrose Chemical Corp. v. Superior Court (1993) 6 Cal. 4th 287 and its progeny, Herrick makes essentially identical arguments on its demurrer as it does on its motion to stay. However, Montrose states that the remedy for a conflict between the interests of an insurer and insured with respect to coverage and underlying actions is a stay, not the sustaining of a demurrer. Thus, Herrick's arguments based on M...

Excerpt: ...os containing products attributable to Defendant. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 855.) Co‐worker witness Paul Schulz testified that he and decedent were present when Defendant's employees removed one to two feet of pipe insulation from a six to eight diameter pipe. (Undisputed Material Fact 16 [Hopwood Declaration, Ex. H at 317:21‐318:19].) He also testified that it took 15 minutes at most to take the insulation off. (...

Excerpt: ...the arbitration shall be "commenced under the auspices of JAMS in San Francisco, California, and following said organization's Commercial Arbitration Rules." Pursuant to Evidence Code sec. 452(h), the court takes judicial notice of the JAMS rules as a matter not reasonably subject to dispute. JAMS revised its arbitration rules effective June 1, 2021, and it presently does not have "Commercial Arbitration Rules." JAMS' "Comprehensive Arbitration R...

Excerpt: ...eter Vestal, 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 the motion may be heard by the Pro Tem. If all parties to the motion sign the stipulation, the hearing will proceed before the Pro Tem who will decide the motion with the same authorit...

Excerpt: ...s that (1) the Fourth Cause of Action does not state facts sufficient to constitute a cause of action" and "(2) the First and Second Causes of Action were previously dismissed without leave to amend, which dismissal was affirmed by the Court of Appeal " (Dmr. 1:28‐2:5,) Plaintiffs "agree that the Court may dismiss" the SAC's first and second "causes of action." (Opp. 9:18‐20.) It is so ordered. While their SAC labels a "Fourth Cause of Action...

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: ...in its initial burden of production. (See CCP 437c(p)(2).) In this products liability action, plaintiffs allege among other things that defendant defectively manufactured or designed the electric skateboard that caused plaintiffs' injuries. (See, e.g., Complaint, pars. 9-11, 16.) Defendant contends that the doctrine of primary assumption of the risk bars plaintiffs' causes of action. "In cases involving 'primary assumption of risk' - where, by vi...

Excerpt: ... is granted. Dr. Pierce shall appear at a third session of his deposition. (1) In response to deposition questions, Defense Counsel will make only good faith objections in a non-suggestive manner and (2) Defense Counsel will not make speaking objections or otherwise comment on the pending question unless Plaintiff's Counsel asks for clarification of the objection. Although not every objection of Dr. Pierce's counsel was improper, he made multiple...

Excerpt: ...S Memorandum Of Costs. Plaintiff's motion to tax costs is denied in its entirety. "If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.Ap...

Excerpt: ...torney General Act. All claims have now been litigated through the discovery cutoff; the trial date is April 4, 2022. Defendants never sought to arbitrate any of the claims and thus waived arbitration. (See Guess?, Inc. v. Sup. Ct. (2000) 79 Cal.App.4th 553, 557.) Defendants say a U.S. Supreme Court case expected to be decided in June 2022 might allow arbitration of the PAGA claims, but an April trial of this case should moot any such result even...

Excerpt: ...ompany II and Walsh Construction Group, LLC) motion for judgment on the pleadings is denied. The grounds for a motion for judgment on the pleadings "shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice [or] a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code." (Cal. Code Civ. Proc. sec. 438(d).) Defendants' motion is based...

Excerpt: ...es of entry of Tentative Ruling). For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPT 301 @ 9:00AM), or dial the corresponding phone number. Any party who contests...

Excerpt: ...estos containing products attributable to Defendant. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 855.) Defendant fails to address testimony from Charles Willert that he and decedent would eat lunch in the houses while the drywallers were performing their work and they would pull out after a half hour if it got really dusty in there. (Smith Declaration, Ex. E at 28:25‐29:14.) Mr. Willert also testified that defendant's employees would...

Excerpt: ...diction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved. (Citations omitted).") (Plant Insulation Co. v. Fibreboard Corp (1990) 224 Cal.App.3d 781, 786‐787.) The accident that forms the basis of this action is already being litigated in Toy v. Chiu, et al., San Francisco Superior Court Case No. CGC‐20‐585780 ("Toy Action").) Toy'...

Excerpt: ...fendants' demurrer is sustained with leave to amend as to Plaintiff's fourth cause of action for retaliation under the Fair Employment and Housing Act ("FEHA"). To make a prima facie case for retaliation, a plaintiff "must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v...

Excerpt: ...requisite particularity. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The court liberally reads the complaint pursuant to CCP 452. Reading the complaint as a whole, plaintiff sufficiently alleges an unlawful business practice based upon the violation of Penal Code sec. 502. Plaintiff also sufficiently alleges an "unfair" business practice. Plaintiff's bid sabotage allegations clearly allege anti‐ competitive conduc...

Excerpt: ... stage of the proceeding. (See Honig v. Financial Services of America (1995) 6 Cal.App.4th 960, 965.) Plaintiff's supporting declaration substantially complies with CRC 3.1324(b) and provides good cause of the amendment. (See Gomerman Decl.) Plaintiff recently discovered that defendant purchased a 2‐liter boot of beer on the day of the accident and contends that he consumed so much of this "glass of beer" so as to become intoxicated. Based upon...

Excerpt: ...y arbitrating the instant indemnity dispute and there is no purpose for two forums to address the issue. (Troughton Decl., Exs. J‐L [demand for arbitration and answer].) "The purpose of the statutory stay [required pursuant to section 1281.4] is to protect the jurisdiction of the arbitrator by preserving the status quo until arbitration is resolved. [Citations.] [] In the absence of a stay, the continuation of the proceedings in the trial court...

Excerpt: ...n for summary judgment or, in the alternative, summary adjudication, is granted. Once a moving party meets its initial burden, the burden shifts to the "plaintiff" or "cross‐ complainant" to show that a triable issue of fact exists. (Cal. Code Civ. Proc. sec. 437(p)(2).) Plaintiff Rebecca Michaels filed a notice of non‐opposition to the Regents' motion. The City and County of San Francisco ("CCSF") is neither a plaintiff nor a cross‐defenda...

Excerpt: ...Arbitration As To Defendant Yunji Willa Qian. Plaintiff's motion for an order to show cause is denied. Plaintiff says a party to an arbitration is violating a JAMS rule that each party pay a pro rata share of JAMS fees and expenses. "It is the job of the arbitrator, not the court, to resolve all questions needed to resolve the controversy." (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 924.) As stated in this court's order sending ...

Excerpt: ...ries Request For Production Of Documents And For Sanctions (Part 1 of 2 for purposes of entry of Tentative Ruling). 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....

Excerpt: ...A's motion for charging order, accounting, assignment order, and temporary restraining order is granted and denied in part. Plaintiffs' motion for a charging order is denied. California Code of Civil Procedure section 708.310 provides, "[i]f a money judgment is rendered against a partner or member but not against the partnership or limited liability company, the judgment debtor's interest in the partnership or limited liability company may be app...

Excerpt: ...ey fees is granted in part. Defendants do not dispute that an award is due, but say the claimed amount is unreasonable. Rates. Plaintiff's counsel's hourly rates are high for what plaintiff itself has described as a straightforward breach of contract case. On the other hand, the judgment was $10.5 million and defense counsel does not reveal his own hourly rate or suggest what rates should be awarded. Based on 36 years' experience with legal rates...

Excerpt: ...main after confidential settlement and/or in the alternative seal portions of the court record on privacy" is denied. When plaintiff filed this suit 32 months ago, he considered using a pseudonym but elected not to, hoping his true name would cause others to "come forward with similar claims." (Mot. 5:1‐ 4.) As request by the parties, the court entered a protective order that permitted confidentiality designations. (Id. at 5:8‐10.) As plainti...

Excerpt: ...or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available." (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241‐1242.) Here, plaintiff fails to meet that heavy burden. Plaintiff's right to privacy does not justify the prior restraint. "[S]paring citizens from embarrassment, shame, or even intrusions into their privacy ha...

Excerpt: ... ("TDC's") motion to consolidate case CGC-21-596626 with case CGC-21-595201 is granted. The cases involve common questions of law and fact. (Cal. Code Civ. Proc. Code sec. 1048(a).) Both actions will require resolution of common issues such as: which LLC agreement governs the parties' relationship; whether Malekar's execution of an LLC agreement that eliminated TDC's rights constituted a breach of his contractual and/or fiduciary duties to TDC; w...

Excerpt: ...er is overruled. The word "unknown" appears nowhere in the statute and the "reasonable cause to believe" is the employee's. (Dem. 2:25; Lab. Code 1102.5.) The FAC pled violations of specific laws. (FAC 4:16‐18.) Defendants' notion that a heightened pleading standard exists is unsupported by the summary judgment case they cite. (Dem. 2:25‐28.) Count 5: Plaintiff agrees to dismiss this cause of action, so the demurrer is moot. Effective Monday,...

Excerpt: ...amend. 1 & 3: The complaint fails to adequately identify the contractual provisions and/or material terms under which defendants were obligated. (Performance Plastering v. Richmond American Homes of Cal., Inc. (2007) 153 Cal. App. 4th 659, 671.) 4: The complaint fails to adequately plead facts that do not merely duplicate the breach of contract cause of action. (Careau & Co. v. Security Pacific Business Credit (1990) 222 Cal.App.3d 1371, 1392‐1...

Excerpt: ...intiff's amended complaint. "[M]aterial facts alleged in the complaint are treated as true for the purpose of ruling on the demurrer." (C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) In addition, "[a] demurrer does not lie to a portion of a cause of action." (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) The court grants defendants' request for judicial notice of the official government filings. (Evidence...

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: ...son's first amended complaint ("FAC"). Plaintiff's third cause of action for trade libel, fourth cause of action for intentional interference with prospective economic advantage, and fifth cause of action for defamation fall squarely within the litigation privilege set forth in Civil Code section 47(b). Section 47(b) protects "any communication (1) made in judicial or quasi‐judicial proceedings; (2) by litigants or other participants authorized...

Excerpt: ...dant Embroker Insurance Services LLC To Provide Further Responses To Demand For Inspection And To Produce Documents; Request For Sanctions. Pro Tem Judge Tom Cohen, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by ...

Excerpt: ...failed to file their present motion to transfer but filed an answer to the First Amended Complaint on November 12, 2021 and served discovery this motion to transfer venue is untimely. However, Defendants acted with reasonable diligence in bringing their motion to transfer venue, which was filed December 14, 2021. (See Walt Disney Parks & Resorts U.S., Inc. v. Sup. Crt. (2021) 21 Cal.App.5th 872, 876-878 [motion to change venue not necessarily unt...

Excerpt: ...n was made before, when and to what judge, what order decisions were made, and what new or different facts, circumstances or law are claimed to be shown." Here, defendant does not comply with this provision as the Rutherford declaration does not sufficiently explain why Retired Justice Ruvolo's (referee) order, which is apparently the new fact, should alter the status quo. The referee merely ruled that he did not have jurisdiction to resolve the ...

Excerpt: ...IEL EVERETT Motion For Reconsideration Of Judgment Dismissing Proceedings As To State Bar Of California And Mayte Diaz And Served On Defendant On November 22, 2021 (Ccp 1008 & Ccp 1012 (A); Time To Move For Reconsideration Is 10 Days From Service Of Order Or Judgment And Additional 5 Days If Service By Us Mail) This motion will be heard by Judge Schulman in Dept. 302 at 1:30 p.m. Plaintiff Daniel Everett's motion for reconsideration is denied. By...

Excerpt: ... demurrer to the Third Amended Complaint ("TAC") is sustained in part and overruled in part. Defendants' request for judicial notice is granted in part. Defendants' demurrer on the basis of Corporations Code section 17707.07(a)(2)(B) is sustained without leave to amend. Corp. Code Sec. 17707.07(a)(2)(B) provides in relevant part: "(2) Except as set forth in subdivision (c), all causes of action against a member of a dissolved limited liability co...

Excerpt: ...dure section 473(b), a "court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." "It is the policy of the law to favor, whenever possible, a hearing on the merits Therefore, when a party in default moves promptly to seek relief, very slight evidence is requir...

Excerpt: ...laint. (See CCP Sec. 418.10(e) [defendant or cross-defendant may move to quash].) The party opposing a motion to quash has the burden to establish the basis for jurisdiction. (See DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090.) Here, Le fails to demonstrate that Sandoval was personally served in compliance with CCP Sec. 415.10. Sandoval denies such service, at least on October 7, 2021. (Sandoval Decl., pars. 1-7.) In addition, Le ...

Excerpt: ...mages is denied. Defendants fail to maintain their burden of production. (See CCP 437c(p)(2).) "In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact [S]ummary judgment 'on the issue of punitive damages is proper' only 'when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.'" (Johnson & Johnson v. S...

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

Excerpt: ... 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 proceed before the Judge Pro Tem who will decide the moti...

Excerpt: ...t a proposed California law on their pro‐life website. Plaintiff sued in this court for defamation, false light and negligence. As the parties agree, California "allows the exercise of personal jurisdiction to the fullest extent permissible under the U.S. Constitution." (Memo. 4:6‐7.) The parties also agree that California's three‐part test for specific jurisdiction applies. (Pavlovich v. Sup. Ct. (2002) 29 Cal.4th 262, 269.) Defendants con...

Excerpt: ... instead examine the principal thrust or gravamen of a plaintiff's cause of action." (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272 (internal quotations and citations omitted).) "If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP s...

Excerpt: ...ings of lead in lead crystal, this court ordered a Proposition 65 consent judgment with extensive provisions. That 2001 judgment in Mangini v. Action Industries, Inc. had 100+ settling defendants, not including Fiskars. The injunctive relief provided by the Mangini judgment is "continuing" and "modification" of that judgment in the future is authorized. (Id. at 4:13, 15:24‐27 see also 14:14‐15 ("claims which may arise").) This "modification" ...

Excerpt: ...ntative Ruling Purpose Only, Part 2 Of 2) Defendant fails to shift the burden on the failure to prevent claim since plaintiff may be able to establish the underlying claims. (See Carter v. Cal. Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 ["courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)"]; Trujillo v. N. County Transit Dist. (1998)...

Excerpt: ...udication of the following issues: "1. Zurich, Allianz, and ICW had a duty to defend Plaintiffs against the DuBois Counterclaim in the Underlying Action. 2. Zurich, Allianz, and ICW's duty to defend Plaintiffs against the DuBois Counterclaim in the Underlying Action encompassed a duty to pay for independent, or Cumis, counsel." Plaintiffs fail to cite competent evidence that they tendered the DuBois Counterclaim to ICW. At undisputed facts 34‐3...

Excerpt: ...on defendants' enforcement of the challenged provisions of the TAJP through individual judicial assignments, rather on their promulgation of the 1,320‐day service cap? 2. Does the SAC contain sufficient allegations of individualized appointment decisions impacting specific, individual TAJP applicants? Is it sufficient to allege that Plaintiffs failed to receive assignments of the same nature and substance they had received in their prior servic...

Excerpt: ...eral Act ("PAGA") claim "is not a dispute between an employer and an employee arising out of their contractual relationship." (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 386.) "Because a PAGA claim is representative and does not belong to an employee individually, an employer should not be able [to] dictate how and where the representative action proceeds." (Jarboe v. Hanlees Auto Group (2020) 53 Cal.App.5th 539, 557; ...

Excerpt: ... prevent discrimination and harassment): Plaintiff adequately pled that complained of conduct was related to her sex and that it altered terms and conditions of her employment. (See, e.g., Cmplt. 5:14‐18, 8:1‐3, 10:20‐21, 13:8‐9.) Demurrer overruled. 5 (retaliation for engaging in a protected activity): Plaintiff adequately pled, inter alia, that she was retaliated against for raising safety concerns at the nuclear power plant where she w...

Excerpt: ...ational of California's (collectively Magellan) summary judgment motion is granted. First, pro per plaintiff Bruce Thomas failed to oppose Magellan's separate statement, file his own separate statement, or identify any factual dispute material to any issue in Magellan's motion. In opposing a summary judgment motion, the opposition papers "shall" include a separate statement "that responds to each of the material facts contended by the moving part...

Excerpt: ...he petition arbitrate and stay proceedings by Defendants Stephens Institute dba Academy of Art University, Elisa Stephens, Sue Rowley, Reid Raukar, Marguerite Crooks and Michael J. Vartain (collectively, "Defendants") is Granted. California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 95...

Excerpt: ...t failed to sustain its burden of showing that Plaintiffs do not possess, and cannot reasonably obtain, needed evidence that decedent Robert Schindler was exposed to asbestos containing products attributable to Defendant. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 855.) Defendant failed to address decedent's testimony that the head gaskets he removed from the Continental engines were made of copper and fiber gray in color and likely h...

Excerpt: ...otion for a stay is denied. First, petitioner is obligated to show that the public interest will not suffer and respondent is unlikely to prevail on the merits because respondent (the agency) adopted the administrative law judge's decision in its entirety. (See CCP 1094.5(h)(2).) Petitioner fails to demonstrate that respondent is unlikely to prevail on the merits. Indeed, it is undisputed that petitioner failed to obtain the required peer review....