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

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

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

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

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

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

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

Excerpt: ...#39;S Application To Reopen Discovery Responses And Production Of Documents And Allow For Extension For Exchange Of Pretrial, Motions In Limine, Expert Disclosures And Depositions. Pro Tem Judge Paul Renne, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation...

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

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

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

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

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

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

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

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

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

Excerpt: ...gations). In order to state a prima facie claim for punitive damages, a complaint must set forth the elements stated in the general punitive damage statute, Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud or malice. Civ. Code § 3294(a). "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant...

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

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

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

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

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

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

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