Excerpt: ...nted out that the "phrase Unjust Enrichment does not describe a theory of recovery, but an effect," Defendant does not provide any authority holding that claims for unjust enrichment are frivolous. (See Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448.) Rather, courts have explained that claims for unjust enrichment "actually seek . . . restitution[,] a term which modernly has been extended to include not only the restoration...

Excerpt: ...7 in favor of intervention. (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1200 ["section 387 should be liberally construed in favor of intervention."] Hartford is the insurer for National Stores, Inc., a defaulted entity that is suspended and lacks the ability to defend itself. Since Hartford would be liable for any ensuing default judgment, it has a direct interest in this litigation and its interests will be prejudiced...

Excerpt: ...W1701180) motion for summary judgment is denied. Movant fails to maintain its burden of production pursuant to Code of Civil Procedure section 437c(p)(2). Plaintiff's First Amended Complaint ("FAC") alleges that defense costs are being incurred rapidly, exhaustion of the primary and first excess policy will almost certainly occur, and the second excess insurance policy benefits will be triggered. (FAC, par. 86.) As this Court already ruled when i...

Excerpt: ...ndants show there are two earlier-filed PAGA actions pending. One in Alameda Superior Court (Tran PAGA Action) and one in this Court, San Francisco Superior Court (Basu-Kesselman PAGA Action). (RJN, Ex. D, Alameda County Super. Ct. No RG20077- 292 and Ex. E, San Francisco County Super. Ct. No. CGC-20-586542.) On August 9, 2021, this Court stayed the Basu-Kesselman PAGA Action due to the overlapping and duplicative nature of the Tran and Basu-Kess...

Excerpt: ..., Nash Liao, Bill Hanson, and Paul Deluca's motion to strike is denied in its entirety. The motion to strike plaintiff's prayer for treble damages and attorney's fees and costs is denied. Defendants' demurrer was overruled; plaintiff properly pleads claims of conversion and violation of Penal Code Sec. 496 against defendants. The motion to strike plaintiff's prayer for punitive damages is denied. The allegations in the complaint support a prayer ...

Excerpt: ...ct to the defendant's financial condition and profits related to the alleged wrongful conduct without an order permitting such discovery. Such an order may be entered at any time "if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294." (Civ. Code sec. 3295, subd. (c).) "[B...

Excerpt: ...all remain in effet pending the transfer of this action. "When several causes of action are alleged in a complaint, a motion for change of venue must be granted on all causes if defendant is entitled to a change on any one." (Johnson v. Superior Court (1965) 232 Cal.App.2d 212, 217.) For Defendant, an individual, the general venue rule applies: "the county where the defendants or some of them reside at the commencement of the action is the proper...

Excerpt: ...endants demonstrate that the parties entered into an agreement to arbitrate and plaintiff does not contend otherwise. (See Strashovskiy Decl. 8 & Ex. A.) The claims asserted by plaintiff fall within the extremely broad scope of that agreement, which extends to "all claims or controversies, past, present or future, whether or not arising out of your employment (or its termination), . . . that you . . . may have against any of the following: (1) th...

Excerpt: ...ant lives at the house with his wife, Jean Sarris. McCullough's papers concede that he has taken it upon himself to initiate construction projects and repairs without authorization from sole trustee David Levin. This includes a roof project McCullough caused to continue even after this court granted a temporary restraining order in June 2021. Given McCullough's admissions and the other evidence, plaintiff Levin is likely to prevail in this litiga...

Excerpt: ...ed in part. Effective Monday, June 28, 2021, for the 9:30 a.m. Law & Motion calendar, attorneys and parties may appear either in person in Department 302 or remotely by videoconference using Zoom. To appear remotely 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, or dial the corresponding phone number. Any party who contests a tentative r...

Excerpt: ...consideration Of Order Granting Milgard Manufacturing, Inc.S Motion For Determination Of Good Faith Settlement Pursuant To C.C.P 877.6. Plaintiffs' motion for reconsideration of the Court's July 14, 2021 ortder granting Milgard Manufacturing, Inc.'s motion for determination of good faith settlement pursuant to Code of Civil Procedure section 877.6 is denied.. Plaintiffs have failed to demonstrate diligence and provide a satisfactory explanation f...

Excerpt: ... granted. The motion is supported by the strong policy favoring liberality in amendment of pleadings. If Defendants wish to challenge the viability of the amended complaint, including whether Plaintiff may join individual and derivative claims, whether the direct claims are time‐ barred, and whether they are barred by judicial estoppel, they may do so by appropriate motion. (See California Casualty Gen. Ins. v. Superior Court (1985) 173 Cal.App...

Excerpt: ... "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 854.) Defendant fails to meet its burden to show that there is no triable issue of material fact. Defendant's argument that it has admitted it is vicariously liable is unsupported by any admissible evidence. Defendant solely relies on Mr. Brin...

Excerpt: ...Paul Henry (Per Ex Parte Order Filed 8/4/2021). Defendants Cerego, LLC and Eric Young's motion for leave to withdraw answers and affirmative defenses to unverified first amended complaint of Paul Henry is granted. Defendants seek to withdraw their answers, apparently in order to allow plaintiff to take their defaults. Although this course of action is admittedly unusual, Plaintiff does not identify any authority that would prevent Defendants from...

Excerpt: ...ied. Plaintiff has the burden to demonstrate sufficient minimum contacts for jurisdiction. (See Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) Plaintiff (through the French declaration) demonstrates specific jurisdiction over Lloyd's. Lloyd's intentionally reached out to plaintiff, a California resident, to sell insurance to it regarding the purchase of another entity. The purpose of the insurance was to protect plaintiff against misrepresen...

Excerpt: ...is overruled. The FAC alleges the cryptocurrency was stolen and laundered through Binance's servers in California. (FAC, 49-50.) Liberally construing the complaint, the conduct that created the liability is alleged to have occurred in California. The demurrer to the sixth cause of action, negligence, is sustained. The FAC fails to allege that Binance owed a duty of care to Zaif. Zaif urges the court to apply a bank's duty of care to non-customers...

Excerpt: ...ctional discovery. Plaintiff's objections to paragraphs 5, 8, 9 and 12 to the declaration of George Feygin are sustained based on lack of foundation. Plaintiff's objection to Exhibit A attached to Defendant's request for judicial notice is sustained based on relevance. Defendant's supplemental request for judicial notice is denied as to Exhibits A and B based on relevance. Discovery is limited to the issue of jurisdiction. Supplemental opposition...

Excerpt: ...ilure To Comply With Courts Discovery Order, Including Terminating 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...

Excerpt: ...llege relevant facts occurring after the original pleading was filed‐here, the entry of the Chinese judgment. (Code Civ. Proc. Sec. 464.) The proposed supplemental complaint does not allege a wholly "new" cause of action or defense, but merely supplements the originally pleaded claims by seeking recovery from defendant of a portion of the same funds allegedly owed on the same contract. (See, e.g., Honig v. Financial Corp. of America (1992) 6 Ca...

Excerpt: ... burden of production. (See Code Civ. Proc. sec. 437c(p)(2).) A "dangerous condition" of public property is "a condition of property that creates a substantial (as distinguished from minor, trivial, or insignificant) risk of injury when . . . used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov. Code sec. 830(a).) "The existence of a dangerous condition ordinarily is a question of fact . . . but it can ...

Excerpt: ...Assocs. (1985) 38 Cal.3d 488, 499, the California Supreme Court held the following factors are relevant in evaluating the good faith of a settlement: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after...

Excerpt: ...atory relief regarding its insurance policy with Plaintiff Williams. (See Cross‐complaint, pars. 1, 28, 32‐34 & Prayer par. 1.) In addition, Kemper has standing to seek declaratory relief regarding the alleged assignment of policy benefits from Williams to Montgomery even though it is not a party to the assignment. Kemper has an "interest" in the assignment as the existence and scope of the assignment directly relates to how Kemper will proce...

Excerpt: ...eport and Recommendations. Plaintiffs' motion to reconsider the Court's June 8, 2021 order is denied. A motion to reconsider must be "based upon new or different facts, circumstances, or law." (Code Civ. Proc. sec. 1008.) "Facts of which the party seeking reconsideration was aware at the time of the original ruling are not new or different." (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.) The moving party, via its affidavit, must demo...

Excerpt: ...es' untimely opposition raises disputed factual issues that are not properly considered on a motion for leave to amend. The proposed first amended complaint allege that plaintiff contracted a life‐threatening disease as a result of ingesting E. coli bacterium at Defendants' restaurant caused by their repeated health code violations including illegal food handling practices. In light of the strong policy of liberality in amendment of pleadings, ...

Excerpt: ...ailure to state a claim is sustained. Facts in affirmative defenses must be "averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) The SAA's laundry-list of 34 affirmative defenses does not meet the required standard. Rather, defendants use the same duplicated facts in almost every defense, where the fac...

Excerpt: ...t defendants' motion to determine good faith settlement is denied without prejudice. In Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488, 499, the California Supreme Court held the following factors are relevant in evaluating the good faith of a settlement: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proce...

Excerpt: ...nd 1033.5. Wrong. As FCA well knows, the prevailing buyer in a Song‐Beverly Act action "shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Civ. Code sec. 1794(d).) The Legislatur...

Excerpt: ...that Plaintiffs do not possess, and cannot reasonably obtain, needed evidence that James Carmichael, and thereby decedent, was exposed to asbestos containing products attributable to Defendant. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 855.) Defendant failed to attach Plaintiffs Brenda Geisinger and James Carmichael's complete responses to Defendant's special interrogatories nos. 1-3 and 5, as well as responses to interrogatories nos...

Excerpt: ...elicopters, Inc.'s motion to stay or abate this action is granted. A wrongful death action may be brought by the decedent's heirs or by the personal representative of the decedent's estate on behalf of the heirs, but not by both. (Code Civ. Proc. sec. 377.60; Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76‐77.) A plaintiff who is suing as the decedent's representative on behalf of the heirs need not join the heirs as parties to the action...

Excerpt: ...r purposes of entry of Tentative Ruling). Pro Tem Judge 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...

Excerpt: ...ranted as unopposed. Defendant's request for sanctions against Plaintiff Mark Williams and his counsel Nikolaus W. Reed is granted in the amount of $1,250.00. Having asserted that he suffered physical and emotional injuries including anxiety/depression and insomnia as a result of the subject incident, Plaintiff has placed those conditions in controversy. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 ["a party who chooses to allege that he h...

Excerpt: ...‐Defendant Ms. Bartholomew's demurrer to the cross‐complaint is overruled in its entirety. The cross‐complaint asserts one cause of action against Ms. Bartholomew for breach of contract. The cross‐complaint alleges Ms. Bartholomew breached the parties' written settlement agreement. (Cross‐ Complaint pars. 1‐2, 5.) The doctrine of res judicata does not apply. The alleged breach of the settlement agreement has not litigated or decided o...

Excerpt: ...he fifth cause of action for breach of implied warranty. The motion is moot as to the sixth cause of action for declaratory relief, which Plaintiff has dismissed. The elements of breach of an express warranty are: " (1) an express warranty to repair defects given in connection with the sale of goods; (2) the existence of a defect covered by the warranty; (3) the buyer's notice to the seller of such a defect within a reasonable time after its disc...

Excerpt: ...For Protective Order, Sanctioning Plaintiffs, And Sadopting The Judge Pro Tem'S Report And Recommendations. Plaintiffs' "motion to reconsider and revoke court's May 12, 2021 order denying plaintiffs' motion for protective order, sanctioning plaintiffs, and adopting the judge pro tem's report and recommendations" is denied for the following reasons. A motion to reconsider must be "based upon new or different facts, circumstances, or law." (CCP 100...

Excerpt: ...ction for violation of Bus. & Prof. Code Section 7031(b) is granted as to Defendant Hastings and denied as to the remaining defendants. "'Contractor,' for the purposes of this chapter, is synonymous with 'builder' and, within the meaning of this chapter, a contractor is any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, ...

Excerpt: ...to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. The elements of promissory fraud . . . are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to...

Excerpt: ...nied. Plaintiff complains that Defendant Walgreen Co.'s written responses to plaintiff's form interrogatories and requests for production of documents were not signed under oath by the party to whom those discovery responses were directed, as required by the Code. (See Code Civ. Proc. secs.250(a), 2031.250(a).) When the party is a corporation, one of the party's officers or agents must sign the response under oath on that party's behalf. (Code Ci...

Excerpt: ...filed with or presented to the court" unless the moving party first serves it on the opposing party at least 21 days before filing it. (Code Civ. Proc. sec. 128.7(c)(1).) Thus, "A party seeking sanctions under section 128.7 follows a two‐step procedure. First, the moving party serves notice of the motion for sanctions on the offending party. Service of the motion starts a safe harbor period during which the motion cannot be filed with the court...

Excerpt: ...on 394 provides in pertinent part: "[A]ny action or proceeding against the city, county, . . . for injury occurring within the city, county . . . to person . . . caused by the negligence or alleged negligence of such city, county . . . or its agents or employees, shall be tried in such county . . . ." "The statute unequivocally provides that an action against a county [or City] for personal injuries occurring in that county, shall be brought in d...

Excerpt: ...ured alleges that for the sole purpose of avoiding payment for property damages clearly caused by the negligence of an unidentified motorist, defendant unreasonably and in bad faith denied coverage under her automobile insurance policy for property damage to her automobile, while accusing plaintiff of lying about the cause of the damage to her vehicle, and without providing any report or evidence to support its position. (Compl. pars. 10, 15, 20....

Excerpt: ...hicle and clipped the front left quarter panel of Plaintiff's Subaru, causing vehicle damage above the wheel well and injury to Plaintiff. Defendant did not stop her vehicle and fled the scene. Defendant fled the scene of an injury collision and thereby committed a felony. (CVC 20001)." These are sufficient factual allegations to support a claim for punitive damages at the pleading stage. (See, e.g., Civil Code 3294(c)(1).) Effective Monday, June...

Excerpt: ...nce. Defendant has not shown that Plaintiffs do not possess, and cannot reasonably obtain, needed evidence that deceased plaintiff Raymond Byrum was exposed to asbestos containing products attributable to Defendant. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 855.) Defendant failed to address co-workers identified in Plaintiffs' special interrogatory responses. (Defendant's Index of Exhibits, Ex. F at 3:8-13.) Plaintiff Stephen Byrum w...

Excerpt: ...k of an arbitration agreement. "Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." (United Steelworkers of America v. Warrior & Gulf Nav. Co. (1960) 363 U.S. 574, 582; Grey v. American Management Services (2012) 204 Cal.App.4th 803, 805‐809.) The party seeking arbitration bears the burden of proving the existence of an arbitration agreement. (Pinnacle Mu...

Excerpt: .... CGC‐20‐582985. This Court's consolidation order does not reopen discovery in that action, which remains closed. Defendant's request to stay this action is unsupported by the authorities cited, and is not in the interest of justice. "[P]rejudice inheres in cases like this one, where long delay inevitably results in dimmed memories and lost witnesses." (Lopez v. State of California (1996) 49 Cal.App.4th 1292, 1295.) Consolidation is the prefe...

Excerpt: ... Denying Plaintiffs Motion For Protective Order, Sanctioning Plaintiffs, And Adopting The Judge Pro Tems Report And Recommendations Plaintiffs' "motion to reconsider and revoke court's May 12, 2021 order denying plaintiffs' motion for protective order, sanctioning plaintiffs, and adopting the judge pro tem's report and recommendations" is denied for the following reasons. A motion to reconsider must be "based upon new or different facts, circumst...

Excerpt: ...rson in Department 302 or remotely by videoconference using Zoom. To appear remotely 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, or dial the corresponding phone number. 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 portio...

Excerpt: ...nied. Cross‐defendants meet prong one of the anti‐ SLAPP statute as to causes of action 1‐4 and 9‐10 of the cross‐complaint, which arise from protected activity under Code of Civil Procedure section 425.16(e)(2) ["any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body"]; (e)(3) [statement in public forum regarding public issue], (e)(4) [conduct in connection with public...

Excerpt: ...ent is granted. Defendant meets her burden as the moving party to show that it is undisputed that the action has no merit. Plaintiff's argument that he was a patient himself, and is thus entitled to access under Section 123115(b), is rejected. "The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond." (Laabs...

Excerpt: ...Reporter Fee Complete tentative ruling has been sent to the parties via e‐mail. Plaintiff's motion for summary adjudication is granted. As a matter of law, defendant owed plaintiff a duty to defend in the underlying action of Lee et al. v. 24th and Hoffman Investors, LLC et al., Case No. CGC‐18‐571219. In the underlying action, the tenants alleged habitability and non‐habitability claims. Causes of action 9 [retaliation], 10 [conversion],...

Excerpt: ...er. The demurrer to the first cause of action for breach of contract is overruled. Under California law, "a cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach." (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401.) Rolebot allege...

Excerpt: ...ourt Reporter Fees Paid***. Hearing required to allow class members to appear. The motion for final approval is granted on the condition that the class representative enhancement payments be reduced from $7,500 to $5,000 for each of the three named plaintiffs, with the difference ($7,500) to be included in the Net Settlement Amount to be distributed to class members. The Court finds this amount to be reasonable in light of the amount of time (app...

Excerpt: ...on the merits. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 ["It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. This rule applies even when no notice was given at all."].) Plaintiff may seek fees because the CCP 998 offer that defendant accepted did not include a waiver of attorney's fees. ...

Excerpt: ...n 426.30, "if a party against whom a complaint has been filed and served fails to allege in a cross‐complaint any related cause of action which . . . he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." "The compulsory cross‐complaint statute is designed to prevent piecemeal litigation. . . . Because of the liberal construction given to the statu...

Excerpt: ...as failed to recognize the eviction moratorium and a medical order governing plaintiff's access to housing accommodation; has failed to recognize his lease and to keep his parking space free of company vehicles; and has failed to respond to plaintiff's notice of civil disturbances in the complex. Defendant shows that the lease agreement concerning plaintiff's tenancy was entered into in Marin County, and that there is a related unlawful detainer ...

Excerpt: ...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 auth...

Excerpt: ...ith and Shawn Evans filed this action alleging that they are entitled to recover on two promissory notes. Defendant cites a Delaware judgment in Avande, Inc. v. Shawn Evans, et al., CA No. 2018-0203-AGB (Delaware Court of Chancery) and argues that res judicata (claim preclusion) and/or collateral estoppel (issue preclusion) bar the instant action. Delaware law governs the preclusive effect of the Delaware judgment. "Under California law, both the...

Excerpt: ...shows that the action may not be pursued. (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-7.) It acts as a mechanism that tests the sufficiency of a complaint as a matter of law. (Weimer v. Nationstar Mortgage, LLC (2020) 47 Cal.App.5th 341, 352.) "In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view of substantial justice between the parties." (See Code Civ. ...

Excerpt: ... unconscionable carve-out provision. (Civil Code, Sec. 1670.5, subd. (a); Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 121 [a court has some discretion whether to sever an unconscionable provision or refuse to enforce the entire arbitration agreement]; see Carlson v. Home team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 639].) With the misappropriation carve-out provision now severed, the parties' arbitration a...

Excerpt: ... supported by the strong policy favoring liberal amendment of pleadings. The amendment is warranted, among other grounds, to allow plaintiff to add factual allegations regarding events occurring after the original complaint was filed. Defendants do not show that they would be prejudiced by the amendment: the trial date is not until February 7, 2022, discovery has not yet commenced, and no dispositive motions have been filed. To the extent that de...

Excerpt: ...ro Tem Judge 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 t...

Excerpt: ...ny'S Motion For Summary Judgment Or In The Alternative,Summary Adjudication. (Part 2 of 3 tentative ruling) Summary adjudication is denied as to plaintiff's intentional infliction of emotional distress claim. To establish IIED, the insured must plead and prove acts by insurer, directed at the plaintiff, "so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Schlauch v. Hartford Accident & Indemnity Co. (1983) 14...

Excerpt: ...entirely sustained with 20 days leave to amend. The first and second causes of action are sustained because the FAC fails to plead a violation of Penal Code section 550. An action under Insurance Code section 1871.7 may be brought on behalf of the State against "every person" who violates Penal Code sections 549 and 550. Those statutes, in turn, criminalize the making of false or fraudulent claims to insurers. Section 1871.7 is limited to present...

Excerpt: ...ember 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 authori...

Excerpt: ...l Motors Corporation v. Superior Court (1996) 48 Cal.App.4th 580.) "The lack of knowledge of the true name of a defendant, however, must be 'real and not feigned.' [Citation.] A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. 'Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant.'" (Dover v Sadowinski (1983) 147 Cal.App.3d 113, 116.) ...

Excerpt: ...es substitute process was proper pursuant to C.C.P. section 415.20. However, when serving a corporate entity, the papers must be delivered to a person who is apparently in charge of such office, such as the personal secretary of the person to be served, and such delivery must be made during the usual office hours. (Code Civ. Proc., section 415.20, subd. (a).) It is undisputed that the service of summons and related papers were served on attorney ...

Excerpt: ... facts sufficient to support a claim for punitive damages. (See, e.g., FAC 2:20‐9:6, 11:20‐12:7.) If proven, the factual allegations could show despicable conduct and thus malice and/or oppression at a minimum. (Civil Code 3294.) The notice of motion's second ground is that swaths of the FAC are "irrelevant, false or improper" and not "in conformity with the laws of this state." This is so lacking in specificity that the motion must be denied...

Excerpt: ...comes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest." (California Rules of Court, rule 2.550(d).) Swoop Search submits the declaration of Paul Bottum, CEO. Bottu...

Excerpt: ...el Further Compliance And Responses To Form Interrogatories General (Set One) And Form Interrogatories Employment (Set One) To Defendant Dhr International, Inc. And For Sanctions And $7,415 In Attorneys Fees. (Part 2 Of 2 Of Tentative Ruling) 207.1 Granted with the understanding that the complaints are those currently set forth in the current complaint. 207.3 Denied. Defendants have answered that no complaints were made until after Plaintiff resi...

Excerpt: ...use is overruled. Financial elder abuse is the taking of property of an elder with "a wrongful use or with intent to defraud, or both." (Cal. Welf. & Inst. Code sec. 15610.30(a)(1).) "Wrongful use" is the taking of property where one "knew or should have known that this conduct is likely to be harmful to the elder." (Id. sec. 15610.30(b).) Here, plaintiff sufficiently alleges that defendants knew or should have known that the investment advice an...

Excerpt: ...attorney's fees, petitioner Mize never sought that relief, and that issue was never briefed. (Mezias Decl., Ex. B pg. 10; Ex D pgs. 19- 20.) Petitioner even admits the windfall nature of this relief. (Mize's points and authorities, pg. 10, fn. 1.) The arbitrator explained that he "inadvertently added" the interest to the fee award and the court can correct that evident miscalculation. (Murphy Decl., Ex. D pg. 2.) The court is aware that a mistake...

Excerpt: ...wn that Plaintiffs do not possess, and cannot reasonably obtain, needed evidence that Plaintiff Roberto Elorreaga was exposed to asbestos containing products attributable to Defendant. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 855.) Defendant has not provided the Court with a complete set of standard interrogatory questions and responses. (Follett Declaration, Exs. A-B.) Defendant has not demonstrated that it propounded "all facts" s...

Excerpt: ...ng) Summary adjudication is denied as to the third cause of action (disability discrimination) because triable issues of fact exist. "[T]he parties' disputes in disability cases focus on whether the employee was able to perform essential job functions, whether there were reasonable accommodations that would have allowed the employee to perform those functions, and whether a reasonable accommodation would have imposed an undue hardship on the empl...

Excerpt: ... 855. Plaintiffs' responses to Defendant's special interrogatories demonstrate that Plaintiffs do not possess and cannot reasonably obtain evidence that Defendant acted with the requisite malice, fraud or oppression to warrant the imposition of punitive damages. (Defendant's Index of Exhibits, Exs. B and C [Plaintiff Roberto Elorreaga's responses to rogs. 1, 13‐25; Exs. D and E [Plaintiff Rosemary Elorreaga's responses to rogs 1, 16‐18]; see ...

Excerpt: ...ce. USF's motion asserts that "Papaneau cannot establish breach of duty or causation because she admits that she did not observe an unsafe condition on the step where she slipped." However, USF concedes "summary judgment does not commonly lend itself to resolving a negligence case" and that is so here. Papaneau demonstrates triable issues of material fact with her testimony that steps below the one she fell on were wet, coupled with a meteorologi...

Excerpt: ...r circumstances and the Court finds those decisions persuasive. (See, e. g., Pappy's Barber Shops, Inc. v. Farmers Group, Inc. (S.D. Cal. 2020) 491 F.Supp.3d 738, 740 [presence of COVID-19 virus at premises does not constitute direct physical loss]; Mudpie, Inc. v. Travelers Casualty Insurance Company of America (N.D. Cal. 2020) 487 F.Supp.3d 834, 838-840 [retailer's inability to operate because of COVID-19 pandemic did not constitute "direct phy...

Excerpt: ...ith leave to amend and Defendants' request for judicial notice is granted. Defendants' request for judicial notice of Exs. A‐ F, and H are all incorporated by reference in the First Amended Complaint ("FAC") and are thus judicially noticeable. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) Exs. G, I, J are official deeds and records and thus judicial notice may be taken under Evid. Code Section 452(c).) Defendants' demurrer on the basi...

Excerpt: ...t is denied in full. Defendant argues this case does not belong in court because plaintiff cannot establish an actual, qualifying FEHA disability which causes the first, second, third, and fourth causes of action to fail. However, the court finds that plaintiff does establish a "physical disability, mental disability, or medical condition" pursuant to the statutory definition. (Gov. Code, section 12920.) The physiological condition or impairment ...

Excerpt: ...his 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 email. If not all...

Excerpt: ...h her vehicle. Moss sued for motor vehicle and general negligence. Mesman's motion argues that she breached no duty to Moss, because she "acted as a reasonably prudent driver would have." However, disputes of material fact exist around at least two issues. First, Mesman has repeatedly admitted she was driving 70‐71 mph in a 65‐mph zone. (PSS 2‐4, 17, 20.) Second, Moss asserts this was too fast for the nighttime conditions. (CACI 706.) Mesma...

Excerpt: ...Real Estate, Inc.'s summary judgment motion is denied. Plaintiffs are buyers of a house. They plead that a large picture window leaks and an upstairs bathroom is not code‐compliant. Leung was the house's listing agent; she works for Sequoia. Leung and Sequoia are charged with "intentional non‐disclosure of a material fact/fraudulent concealment" and negligent misrepresentation. Leung asserts that her role was "merely as real estate agent and ...

Excerpt: ...riters, Inc.'s "application for good faith determination (CCP 877.6(a)(2))" is granted. Northfield and Bass's settlement with plaintiffs is within "the ballpark" of Tech‐Bilt, Inc. v. Woodward‐Clyde Assocs. (1985) 38 Cal.3d 488. This case involves underinsurance revealed after a fire. Applicants and plaintiffs attribute this predominately to defendant Calender‐Robinson Co., Inc.'s reports of inaccurate building square footages, and thus hav...

Excerpt: ...ication Of Issues As To Defendant And Cross Complainant Hensel Phelps Construction Co.'s Cross-Complaint Against Cross Defendant Deharo-Ramirez Corp. Cross-complainant Hensel Phelps Construction Co.'s ("Hensel") motion for summary judgment on its cross-complaint against DeHaro Ramirez Group ("DeHaro") is denied. Hensel's motion for summary adjudication on its breach of contract cause of action is denied. Hensel failed to maintain its initial burd...

Excerpt: ... first element of a promissory estoppel claim, a promise clear and unambiguous in its terms, has not been established. (See Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734.) A promise is an indispensable element of the doctrine of promissory estoppel. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416.) Cases are uniform that the doctrine cannot be invoked and must be held inapplicable in ...

Excerpt: ...4:18-23, 6:3-26, 7:12-20.) Factual disputes are raised that are not resolvable by demurrer. (Memo. 4:13-20, 6:3-5.) Defendant cites no authority for his notion that "forms" of entity and receipt need be pled. (Id. at 4:21-24.) Hasso v. Hapke (2014) 227 Cal.App.4th 107 does not hold that defendant was free to fraudulently transfer assets because plaintiff had a lien on them; rather, Hasso involved defendants' valid liens. 2 (conspiracy to commit f...

Excerpt: ...on had served numerous discovery requests and subpoenas, and had filed numerous motions, the Court appointed a judge pro tem to hold an informal discovery conference, which was held on March 2. Following that conference, the judge pro tem issued a lengthy report and accompanying proposed stipulation and order, which plaintiff refused to enter into. The Court hereby adopts the provisions of the recommended stipulation as its order, as follows: 1. ...

Excerpt: ...wful Practice of Law. By order filed April 29, 2020, this Court granted the State Bar's application for a permanent order assuming jurisdiction over Respondent's unauthorized law practice. In that order, the Court found among other things that although Respondent has never been an active member of the California State Bar and has never been otherwise authorized pursuant to statute or court rule to practice law in California, she nevertheless was ...

Excerpt: ...is the existence of an actual, present controversy over a proper subject. (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 181; Osseous Technology of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 367 ["There is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs"].) A trial co...

Excerpt: ...de of Civil Procedure section 484.090 provides that the court "shall issue" a right to attach order to the plaintiff where the following elements are established: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the applicant has established "the probable validity" of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim ...

Excerpt: ... of entry of Tentative Ruling.) Pro Tem Judge Robert Kane, 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 ...

Excerpt: ... rented scooter, he ran over a "drop off" and into "thousands of asphalt pebbles and pellets," fell and was severely injured. Plaintiff sued the City and County of San Francisco, its contractor Ghilotti Bros., Inc. and Skinny Labs for general negligence, the former two co‐defendants for premises liability and the latter for products liability. Skinny Labs cites an arbitration clause in its online rental agreement, but neither the City nor Ghilo...

Excerpt: ...ned with leave to amend. 4 (concealment). Less specificity is required in the context of negative fraud or "when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy . . . ." (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) This demurrer is overruled. 7‐10 (assault, sexual battery, intention...

Excerpt: ...orth 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 telephone, the sti...

Excerpt: ...tion under Code of Civil Procedure section 437c(p)(2). Defendant argues that it is entitled to summary judgment because it did not employ the forklift operator and therefore cannot be held vicariously liable under the doctrine of respondeat superior. Liberally reading the Second Amended Complaint per Code of Civil Procedure section 452, however, the pleading also raises issues of premises liability and negligent entrustment. (See, e.g., par. 17 [...

Excerpt: ... 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 telephone, the stipulation ma...

Excerpt: ...o another proper county when "the convenience of witnesses and the ends of justice would be promoted by the change." The burden is on the party seeking a change of venue to prove that both the convenience of witnesses and the ends of justice would be promoted by the change. (Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 477.) In this action, Plaintiff alleges that she suffered discrimination, harassment, and retaliation, amo...

Excerpt: ...a breach of contract claim, plaintiff must allege: (1) the existence of a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damage to plaintiff therefrom. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI 303.) Here, the face of the amended complaint shows that co‐defendants (the News) entered into the adduced agreement with plaintiff and there are no facts showing how East We...

Excerpt: ...disbursed to defendant Montiel forthwith. The parties entered into an accord and satisfaction when plaintiff's counsel stated: "I see no reason to be arguing with you so we have decided to reduce our clients' demand into the above‐ referenced escrow to $539,220.07" and then that sum was remitted to plaintiff. (Smurro Decl., Ex. F.) Thus, the underlying 2013 judgment was fully satisfied in June 2016, when escrow closed. (Code Civ. Proc. sec. 724...

Excerpt: ...Tem Judge Noah Lebowitz, 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 ...

Excerpt: ...MPANY A/S/O ANG LI's Motion To Compel Further Responses To Form Interrogatories, Special Interrogatories, Request For Admissions And Request For Production Of Documents, And Request For Sanctions: Pro Tem Judge Katherine Gallo, 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 ...

Excerpt: ...laintiffs did not meet their burden to show they are entitled to disgorgement of the full $411,892.96 paid to O'Reilly. "The "term 'compensation' as used in [Business & Professions Code 7031(b)] denotes sums claimed as an agreed price, fee or percentage earned by performance, and also sums claimed as the reasonable value of work done under implied contract." (Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 32.) It remains disputed what part of the...