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

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

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

Excerpt: ...ut argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. Counsel for plaintiff is required to prepare a proposed order which states that the motion was not opposed and must bring it to the hearing or email it to [email protected] prior to the hearing even if the tentative ruling is not contested. =(302/EPS) Case Number:CGC19576379Ca...

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

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

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

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

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

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

Excerpt: ...l punitive damage statute, Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ. Code § 3294(c)(1).) Absent an intent to injure the plai...

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

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

Excerpt: ...losure And Defendants Expert Micheal Flemming And For Monetary Sanctions. Pro Tem Judge Scott Borrowman, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the sti...

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

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

Excerpt: ...nt must set forth the elements stated in the general punitive damage statute, Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ. Code ...

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

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

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

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

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

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

Excerpt: ...ouglas Bell does not possess and cannot reasonably obtain evidence that he was exposed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Defendant does not address Plaintiff's interrogatory responses identifying witnesses Pat Tillman and Robert Lee, or his deposition testimony identifying classmates Pat Tillman, Brenda and Tom Mock, Mel Friedman, and Lee Boek. ...

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