Excerpt: ...nvert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show." (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115.) Defendant argues he owed no duty towards plaintiff Maurice Smith. However, liberally construing the complaint, plaintiffs sufficiently plead duty as an element of a negligence cau...

Excerpt: ...otion To Strike Portions Of Plaintiffs First Amended Complaint. Defendants' motion to strike the claim for punitive damages on the second cause of action for negligent hiring is granted without leave to amend. "The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death." (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 684.) Plaintiff's second cause of action alleges that defendants negligent...

Excerpt: ... cause of action for misrepresentation is overruled. Plaintiff's allegations that Defendant entered into agreements that were "partly written" and "partly verbal," made "verbal promises to pay Plaintiff and to reimburse Plaintiff," and that those representations were made "from mid-2016 through May 2017," are sufficient. (See FAC, pars. 18, 43.) As a result of the COVID-19 emergency, all attorneys and parties are required to appear remotely. Hear...

Excerpt: ...d that holddowns were missing. (Plaintiff's AMF 400, Woods Decl. par. 27; see also O'Connor Decl., par. 9.) Nevertheless, defendant assured plaintiffs that the holddown issue was isolated, that it would be remediated, and was in fact corrected. (Plaintiffs' AMF 407-410, Woods Decl., pars. 29-30.) There is thus a dispute of fact regarding when plaintiffs reasonably should have known of the damage and defendant's alleged breach. Based on the above,...

Excerpt: ...communication (the publishing of tax returns) related to litigation that was contemplated in good faith and under serious consideration. (Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 1095.) This question of fact must be determined before the litigation privilege is applied. Defendants argue threats of litigation existed and that Defendant Wood believed litigation was imminent. (UMF # 18.) However, the privilege arises when li...

Excerpt: ...utoff. 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 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 wil...

Excerpt: ... action for breach of express and implied warranties. "The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale." (Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 6892, 695; Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, ...

Excerpt: ...Defendants' motion for summary judgment is denied. Defendants' motion for summary adjudication is granted and denied in part. The motion for summary adjudication is denied as to causes of action 1‐3 for violation of the Song‐Beverly Consumer Warranty Act. Defendants failed to maintain their initial burden of production as they fail to show that the 4‐year statute of limitations bars the claims. (See Krieger v. Nick Alexander Imports, Inc. (...

Excerpt: ... and stay is granted. As a Defendant shows that it entered into a Group Agreement and Evidence of Coverage with CalPERS that mandates the arbitration of "any claim" arising out of the Agreement. (Pet., Ex. A at 92.) As a CalPERS member and participant in its group health insurance policy (Compl., par. 4), Plaintiff is bound by that agreement. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 705‐709 ["an agent or other fiduciary [suc...

Excerpt: ...r Discovery Responses (Part 2 of 2 for purposes of entry of Tentative Ruling). As a result of the COVID-19 emergency, 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 corr...

Excerpt: ...County. FEHA actions have a special venue requirement that supersedes the general venue rules. An action for a FEHA violation may be brought "in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained...or in the county in which the aggrieved person would have worked." (Gov. Code, sec. 12965, subd.(b); see also Brown v. Superior Court (198...

Excerpt: ...l.4th 861, 872 ["To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged."].) As long as the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.) Plaintiff alleges that while dr...

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: ...ranted in part and denied in part. As to the administrative record, there was no need for Petitioner to file the motion to seal, as the record was required to be lodged rather than filed. (See Cal. R. Ct. 3.1140.) However, because Petitioner has filed a redacted version of the administrative record with the court, that version may remain under seal on the court's public docket, as the complete unredacted administrative record has been lodged with...

Excerpt: ...ng papers rely on California law to argue that the Delaware judgment in Avande, Inc. v. Shawn Evans, et al., CA No. 2018‐0203‐AGB (Del. Ct. Ch.) bars the instant action based on the principle of res judicata (claim preclusion). Plaintiffs aptly note, however, that Delaware law, not California law, governs the preclusive effect of the Delaware judgment. "Under California law, both the validity and effect of a foreign judgment are governed by t...

Excerpt: ...d default judgment is denied in its entirety. Defendants' motion is untimely. "The court may . . . 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" so long as the application is made "in no case exceeding six months[] after the judgment, dismissal, order, or proceeding was taken." (Code Civ. P...

Excerpt: ... Compel Olivia Nava's Responses To Special Interrogatories (Set One), Requests For Production Of Documents (Set One), And For Monetary Sanctions 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...

Excerpt: ...hat the parties met and conferred "in person or by telephone" in compliance with Code of Civil Procedure section 430.41(a). The Court orders the parties to meet and confer if plaintiff intends to renew his attack on the amended answer. For the parties' guidance, the Court notes the following: (1) defendants' 55 affirmative defenses seem excessive; (2) an affirmative defense must be pleaded with the same care as a cause of action (see FPI Developm...

Excerpt: ...ears ago, on October 19, 2009. Under Code of Civil Procedure section 583.310, "[a]n action shall be brought to trial within five years after the action is commenced against the defendant." If a plaintiff does not comply with the five-year requirement, the action "shall be dismissed by the court or on its own motion or on motion of the defendant." (Code Civ. Proc. Sec. 583.360(a).) In computing the five- year period, "there shall be excluded the t...

Excerpt: ...rve 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 may be signed ...

Excerpt: ...okin for retaliation is sustained because, as the California Supreme Court held squarely in Jones v. Torrey Pines Lodge Partnership (2008) 42 Cal.4th 1158, supervisors may not be held personally liable for retaliation under the FEHA. (Id. at 1173 ["we conclude that the employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation"]; see also Lopez ...

Excerpt: ...Motion For Order To Obtain International Assistance Form The Honorable Czech Republic Supreme Court Pursuant To The Hague Convention Treaty, International Custom, And Judicial Norms; Motion For Order Issuing Letter Rogatory. Pro Tem Judge Steven Stein, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a Temporary Judge, on stipulation of the parties and Order of the Superior Court dated Februar...

Excerpt: ...ues exist as to each of the three. First, defendant says the "claimed 1/2" height differential does not constitute a 'dangerous condition' as a matter of law." However, the opinions cited do not address the situation here: a depression in paving stones next to a concrete strip. Second, defendant's employee testified to inspecting the walkway "almost on a daily basis," raising a dispute as to whether defendant had actual and/or constructive notice...

Excerpt: ... of fraud. (See CACI 1900 [elements of intentional misrepresentation]; CACI 1901 [elements of concealment]; Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178 [reviewing summary adjudication ruling of "two fraud claims" and examining the concealment and intentional misrepresentation claims separately].) Plaintiffs must segregate these distinct claims and plead them separately. (See Cal. R. Ct. 2.112 [causes of action must be separately st...

Excerpt: ...oration" (Compl., pars. 1, CC‐1) is a suspended corporation. (RJN, Ex. B [articles of incorporation]; Fernandez Decl., par. 5 & Ex. 3.) As such, it "may not prosecute or defend an action in a California court." (Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1366; see also Casiopea Bovet, LLC v. Chiang (2017) 12 Cal.App.5th 656 [same].) However, Plaintiff presents evidence that counsel mistakenly named the suspended corporation as ...

Excerpt: ...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 sign given by...

Excerpt: ...Plaintiff's third amended complaint, and on December 17, 2020, it denied Plaintiff's motion for reconsideration of that order and of Plaintiff's motion for leave to file a fourth amended complaint. Although Plaintiff has purported to appeal from the latter orders, they are not appealable orders, as Plaintiff has causes of action remaining for resolution in the case. (Code Civ. Proc. sec. 904.1; see In re Baycol Cases I & II (2011) 51 Cal.4th 751,...

Excerpt: ...nt Of Special Master And Attached Documents: Memorandum Of Points And Authorities And Declaration Of Counsel In Support Of Motion: Plaintiff's motion to designate case complex is denied without prejudice. That application needs to be presented to department 304 per SF Local Rule 3.5C(2). Plaintiff's motion for appointment of special master is continued to April 1, 2021. The Court determines that there is good cause to appoint a special master/ref...

Excerpt: ...otion. 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 part...

Excerpt: ...urt orders consolidation for all purposes and case CGC- 20-587352 is designated the lead case and all future filings shall be made under that case number. As explained in the companion motion, the Court will compel arbitration of TRM's claim against Swinerton. The remainder of the consolidated action is stayed. The three actions involve the same projects and common issues of law and fact exist. Consolidation of the actions will further judicial e...

Excerpt: ...on. (Lab. Code sec. 3600(d)(1); Ybarra v. John Bean Techs. Corp. (E.D.Cal. 2012) 853 F.Supp.2d 997, 1014; Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1403-1406.) Second, Plaintiff acknowledged in his employment agreement that workers' compensation was his sole remedy for workplace injuries, and expressly waived any claims against Defendant. (Employment Agreement par. 17.) Plaintiff does not dispute any of the material facts on w...

Excerpt: ...thorities In Support And Declaration Of Jordan Susman: Cross-Defendant's motion to strike the cross-complaint's request for attorney's fees is granted. "We start with the basic proposition that each party to a lawsuit must pay its own attorney fees except where a statute or contract provides otherwise. (Code Civ. Proc., sec.1021.)." (Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 450.) There is no statutory basis for attorney's fees here....

Excerpt: ...ts And Provide Further Discovery Responses: Requests for Production of Documents: #7 why are these materials relevant to the subject matter which is Old Navy's lease which was executed prior to 2019?; #8, 9, 10, 11, and 16 - why are these materials relevant to the subject matter which is Old Navy's lease which was executed prior to 2019 and isn't this an invasion of privacy and confidential information between PG and other tenants even if subject...

Excerpt: ...d covenant of good faith and fair dealing and on the punitive damages prayer. Defendant fails to meet its burden of production that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "In insurance policies, as in all contracts, the law implies a covenant of good faith and fair dealing, and an insurer's denial or delay in paying policy benefits can give rise to tort damages if the denial o...

Excerpt: ...o attach orders and orders for issuance for writs of attachment" are denied. OSK is a lender for the renovation and repurposing of St. Joseph's Catholic Church. OSK does not claim that cross- defendants have failed to make any scheduled payment. Rather, OSK demands a more than doubled interest rate because cross-defendants "defaulted" by completing the project as a "social club" for "art connoisseurs and socialites." Cross-defendants respond with...

Excerpt: ... particularity as a cause of action. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) Here, defendant's answer is factually rich and pleads facts that support the affirmative defenses. Plaintiff's arguments regarding the verifications fail as there is no contention that defendant is acting in bad faith. (See League of Women Voters v. Eu (1992) 7 Cal.App.4th 649, 656 ["'The object of a verification is to assure good faith i...

Excerpt: ...rocess is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Under [Code of Civil Procedure] section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Relief from a judgment...

Excerpt: ...See Code Civ. Proc. sec. 437c(p)(2) [burden of production].) Whether an employee is acting within the course and scope of his job and the employer can be responsible for the employee's conduct under the principle of respondeat superior is generally a question of fact. (See Bingener v. City of Los Angeles (2019) 44 Cal.App.5th 134, 140; Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 434.) An employer can be liable for an e...

Excerpt: ...any of Pittsburgh, PA, TIG Insurance Company, Certain Underwriters at Lloyd's London, and Certain London Market Insurance Companies ("Intervenors") have failed to sustain their initial burden of production pursuant to Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855. It is undisputed between the parties that Plaintiff was present while J&H Marine & Industrial Engineering Company employees ("J&H employees") removed and installed al...

Excerpt: ...mended motion to vacate entry of the default entered against them on September 29, 2020, is granted. The complaint in this action was filed on July 22, 2020, and was personally served on defendants on July 31, 2020. Defendants filed their motion to vacate entry of default on January 8, 2021, more than three months after entry of default. Under ordinary circumstances, that delay might be considered unreasonable. (See, e.g., Stafford v. Mach (1998)...

Excerpt: ...uced by $595 to $3,625.04 to remove a duplicate entry based on Defendants' stipulation. Denied as to the remaining entries. As the prevailing parties in this action, Defendants are entitled as a matter of right to recover all of their costs in this action, regardless of the particular cross‐action or pleading to which the costs may relate. (Code Civ. Proc. sec. 1032(a)(4),(b).) Item No. 15 Fees for Hosting Electronic Documents ($19,628.04). Mot...

Excerpt: ...ection 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 required to ...

Excerpt: ... basis for employer liability. "Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right." (Civ. Code sec. 52(b).) "[A]n employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort . . . The theory of rat...

Excerpt: ...dum Of Points And Authorities And Declaration Of Jeffrey Lewis In Support Thereof: Defendants' motion for an award of attorney's fees and costs is granted in the amount of $22,340 in fees and $2,631.56 in costs, for a total of $24,971.56. As the prevailing parties on the special motion to strike, defendants are entitled to recover their attorney's fees and costs. (Code Civ. Proc. sec. 425.16(c)(1) ["a prevailing defendant on a special motion to s...

Excerpt: ...to the second cause of action for public disclosure of private facts. (The Court's complete tentative ruling has been emailed to all counsel) As a result of the COVID-19 emergency, 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 ap...

Excerpt: ...t defendants made false statements of fact regarding plaintiff's job performance in its termination memorandum and subsequently in writing and orally. (Complaint, pars. 35-43, 68- 77.) Plaintiff sufficiently alleges the substance of the defamation. (See Okun v. Superior Court (1981) 29 Cal.3d 442, 458 ["[S]lander can be charged by alleging the substance of the defamatory statement."] Moreover, defendants should be aware of the allegedly false sta...

Excerpt: ... fled the scene without rendering assistance, leaving him injured and bleeding on the ground, is sufficient to establish "despicable conduct" constituting malice. Indeed, as plaintiff points out, such conduct constitutes a felony hit‐and‐run in violation of the California Vehicle Code. (Veh. Code sec. 20001(b); see Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1319, 1336‐ 1338, 1340 [jury awarded punitive damages to plaintiffs where def...

Excerpt: ...d Defendants to complete the certified administrative record submitted to the Court on January 19, 2021 by adding three categories of documents relating to the Board's Finding of Emergency and Addendum #1 for the challenged Emergency Temporary Standard. In a proceeding challenging a finding of emergency under the APA, a court may only consider the following evidence: (1) the rulemaking file; (2) the finding of emergency; (3) an item that is requi...

Excerpt: ... December 17, 2020. The court may not dismiss an action for delay in prosecution unless (1) service is not made within two years after the action is commenced against the defendant; (2) the action is not brought to trial within three years, or within two years under certain circumstances; or (3) a new trial is granted. (Code Civ. Proc. sec. 583.420(a).) "The times provided in subdivision (a) shall be computed in the manner provided for computatio...

Excerpt: ...For Purposes Of Entry Of Tentative Ruling)Rulings:Matter on the Discovery Calendar for Tuesday, February 9, 2021, Line 4, Cross-Defendant Dan Phipps Architects PC's Motion For Terminating Sanctions Or In The Alternative Evidentiary And Issue Sanctions Against Cross- Complainants Christopher Matthew Hunt And Mara C Hunt And Request For Monetary Sanctions Against Christopher Matthew Hunt And His Counsel Of Record Leonard Rifkind Jointly And Several...

Excerpt: ...without leave to amend based on claim preclusion. Plaintiff's claim is predicated on Uber's alleged statements regarding "safe rides" and background checks. Those claims were previously asserted and resolved as part of a class action settlement in McKnight v. Uber Technologies, Inc., 4:14-cv-05615-JST (N.D. Cal. Jun. 1, 2017), ECF No. 125. An amended (and final) Stipulation of Settlement (the "Settlement") was reached and entered on June 1, 2017....

Excerpt: ...he required specificity - "how, when, where, to whom and by what means." (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645.) This demurrer is sustained with leave to amend. 5-8 (assault, sexual battery, false imprisonment, intentional infliction of emotional distress). Defendants' demurrer ignores the complaint's allegations that "Uber is a common carrier" and thus liable for assaults "regardless of whether such acts were committed within the course ...

Excerpt: ...year‐old plaintiff alleges that defendants ‐ who oversaw both her securities accounts and insurance needs ‐ allowed her long‐term care insurance policy to lapse. Defendants point to arbitration provisions in three agreements. The first is for a "cash management account" not involving insurance. (Michal Dec. Ex. A.) Plaintiff signed the other two agreements as "trustee" for trusts (Id. at Exs. B, C), and her long‐term care insurance was ...

Excerpt: ...ative ruling) PLAINTIFF CHERIE POWER's Motion To Compel Defendant Ignacio Cong Fong's Further Responses To Plaintiffs Form Interrogatories, Set Two, Number 15.1 And Requests For Documents, Set One; Request For Sanctions Against Defendant Ignacio Cong Fong And His Attorney Of Record, Jimmie Williams, In The Amount Of $1,719.95 Pro Tem Judge Katherine Gallo, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 ...

Excerpt: ...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 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 decid...

Excerpt: ...ismiss appellant's appeal as untimely pursuant to Labor Code section 98.2(a)" is denied. It is undisputed that the deadline for filing the appeal was August 28, 2020. "A document is deemed filed on the day the clerk receives it (CRC 8.25(b)(1), and the clerk here received the appeal before the deadline." Moreover, "[t]here is a strong public policy in favor of hearing cases on their merits and against depriving a party of his right of appeal." (U...

Excerpt: ...motion for preliminary approval of class action settlement is denied without prejudice, and the hearing is continued to March 4, 2021. By February 25, plaintiffs shall submit a further factual showing and a revised proposed settlement agreement sufficient to address and resolve the following issues: 1. Plaintiffs ask the Court to approve the class notice, which the moving papers indicate is attached to the proposed settlement agreement as Exhibit...

Excerpt: ... agreed to dismiss their complaint against Alfa with prejudice for a waiver of costs. Movant presents evidence that it lacks any substantial exposure to liability in this case because it had no contract with defendant 1233 Polk Street LLC dba Mayes Oyster House to provide security on the date of the incident in question. Mr. Ieremia, the security guard, testified unequivocally that "Alfa Private Security Services, Inc. was not performing any secu...

Excerpt: ...e determined from the contract and not by reliance on the independent doctrine of equitable indemnity.'" (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 873.) Plaintiff, however, can plead alternative equitable theories of liability where the express indemnity agreement is unenforceable or inapplicable to the parties' dispute. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389 [party could not assert qua...

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: ..., 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: ...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: ...y)(Part 3 of 3): The court denies summary adjudication on the claim for punitive damages. The disability discrimination causes of action can support the claim and there is no evidence regarding whether Sanchez is or is not a managing agent of G.A.T. per Civil Code sec. 3294. As a result of the COVID-19 emergency, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the h...

Excerpt: ...of action 1‐8 and 10‐11 are overruled. Plaintiff alleges sufficient facts that defendant is the successor of plaintiff's employer, Caruma Technologies Inc., and defendant is liable for Caruma's debts. The law is clear that "[i]f a corporation organizes another corporation with practically the same shareholders and directors, transfers all the assets but does not pay all the first corporation's debts, and continues to carry on the same busines...

Excerpt: .... (See Code Civ. Proc. sec. 437c(p)(2).) "The driver of an automobile must manage his vehicle so as not to create an unreasonable risk of harm to others " (California Body & Trailer Mfrs. v. Albrecht (1971) 16 Cal.App.3d Supp. 1, 3.) There is a triable issue of material fact regarding whether defendant breached this duty of care. The evidence shows that defendant pulled the vehicle next to the bike lane‐not the curb‐and told co‐defendant Bu...

Excerpt: ...ent Of July 29, 2011. Defendant's motion to vacate judgment is denied. Defendant fails to show that the judgment is void or that plaintiff or the Court acted in excess of its jurisdiction. On March 18, 2002, Defendant Mae Ratunil Galvez‐Lantion resigned with charges pending from the State Bar of California. The Supreme Court awarded costs in favor of the State Bar pursuant to Business and Professions Code section 6086.10 ("In any order . . . ac...

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: ...ovide the Court with sufficient evidence to determine whether the overall amount of the proposed settlement is fair and adequate in view of the purposes and policies of PAGA, taking into account such factors as the adequacy of the civil penalties in light of the potential maximum if the matter were to go to verdict and the risks of litigation. (Lab. Code Sec. 2699(l)(2); see Haralson v. U.S. Aviation Services Corp. (N.D. Cal. 2019) 383 F.Supp.3d ...

Excerpt: ...ied without prejudice to Plaintiffs filing a supplemental submission. Plaintiffs have not presented sufficient information to enable the Court to evaluate the reasonableness of the proposed settlement. In order to determine whether a proposed class action settlement is fair and reasonable, a trial court "should consider relevant factors, such as the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigat...

Excerpt: ...ich followed demurrers to Flatto's original complaint: 4 (Common Law Misappropriation), 7 (Breach of Implied Contract), 9 (Intentional Interference With Prospective Economic Advantage). Flatto belatedly pleads these three new causes of action. Each has a statute of limitation that runs in two or three years, so the causes are time‐barred. Flatto's SAC alleges that Betabrand began misappropriating her designs by posting them on social media site...

Excerpt: ...ets 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: ... bring a[] . . . defendant within the reach of the state's jurisdiction for purposes of a personal judgment…." (Allen v. Superior Court (1953) 41 Cal.2d 306, 310‐311.) Defendant does not challenge jurisdiction on the basis that she is not domiciled in California, and her own proof of service states that she is "domiciled in California." (Def.'s Mot, pg. 5.) A motion to quash can also challenge lack of jurisdiction where there has not been val...

Excerpt: ... Cosco Fire Protection, Inc.'s motion for summary judgment is denied. Defendant fails to maintain its initial burden of production. Defendant relies on the "power press" exception to workers' compensation exclusivity, Labor Code section 4558, which provides that an employee "may bring an action at law for damages against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of, or knowing failur...

Excerpt: ...ocedure section 473(b) does not provide Defendant with a basis for relief. A motion for relief under that statute "shall . . . be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." Default was entered on April 22, 2020. Defendant did not file this motion to set aside until November 25, 2020, more than six months later. "The six-month time limitation is jurisdictional; th...

Excerpt: ...g good faith settlement is denied. West Coast has not presented sufficient admissible evidence to enable the Court to determine "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability." (Tech‐Bilt, Inc. v., Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499.) "If 'there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant's liability, then a d...

Excerpt: ...a harsh remedy because it causes the defendant to lose control of his property before the plaintiff's claim is adjudicated," so "the requirements for the issuance of a writ of attachment are strictly construed against the applicant." (Martin v. Aboyan (1983) 148 Cal.App.3d 826, 831; Blastrac, N.A. v. Concrete Solutions & Supply (C.D. Cal. 2010) 678 F.Supp.2d 1001, 1004 (applying California law).) Applicant Idemitsu at a minimum fails to establish...

Excerpt: ...on. Interior designer Charise Rosenthal alleges she stepped on the slippery mud, almost fell and was injured. She sued Ren Lei for negligence. The Ren Lei motion's only arguments are that (1) it did not breach its duty not to create unreasonable risk of harm by leaving the site unattended "for five minutes" and (2) the site was "open and obvious." However, triable issues exist on both points. Whether it is appropriate to leave tile mud unattended...

Excerpt: ...nc.'s summary judgment motion is granted. Maventus has demonstrated that plaintiff Jacqueline Holden never paid it the $170,000 which was the supposed consideration for the promissory note (SSUF pp. 4, 7‐18), and Holden's opposition papers make no attempt to claim otherwise. Thus, Holden's cause of action for "breach of contract ‐ promissory note" fails for lack of consideration. Likewise, Holden's conversion cause of action fails, because Ma...

Excerpt: ...aintiff has shown that the conditions of the stay, that the Chinese court resolve the dispute between Mr. Yao and Mr. Lui, have been met. (Wang Decl. 1:27 ‐ 2:2.) The Court's September 24, 2018 order granting Defendants' motion to dismiss or stay action provided that "[o]nce the Chinese court resolves the dispute between Mr. Yao and Mr. Lui, Mr. Yao can return to the court to lift the stay and seek any other appropriate remedies." Plaintiff bro...

Excerpt: ... Operating Surplus to Association members. (See Mot. at 4:17 ["This motion is to compel Association to return the excess funds immediately."]; id. at 6:25‐26 ["Plaintiff requests this Court to compel the Defendant to return the 2019 Operating Accounting Surplus immediately."].) However, Defendant shows that the 2019 operating surplus was returned to GTCA members on a pro rata basis on November 1, 2020 by the management company at the direction ...

Excerpt: ...ervice of a summons has not resulted in actual notice to a party in time to defend the action and a default or 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 Civ. Proc. section 473.5.) Defendant testifies that he "never received the Summons or Complaint" that was mailed to his former residenc...

Excerpt: ...laintiff filed an untimely motion to strike the demurrer, which is off calendar because Plaintiff did not serve and file the motion to strike at least 16 court days before the hearing, as required by Code of Civil Procedure section 1005(b). That Plaintiff is self- represented does not excuse these procedural deficiencies. "[T]he rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representati...

Excerpt: ...ot to another state. (See generally California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) par. 3:450, at 3‐130 ["Venue rules designate a particular county (or counties) within California as the 'proper' place for trial of the action. Since jurisdiction is statewide, the venue rules serve to narrow geographically the place for trial."].) The proper motion to seek such transfer is a forum non conveniens motion. Venue is ...

Excerpt: ...tervenor has demonstrated the right to intervene in this action under Code of Civil Procedure section 387(d)(1)(B) ["The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of...

Excerpt: ...enied. Plaintiff fails to show that defendant Dealyze Inc., a Florida Corporation, cannot oppose this motion. Plaintiffs are not entitled to discretionary relief under CCP 473(b) because the dismissal was entered on August 28, 2018 and plaintiffs filed their motion for relief on November 30, 2020, which is more than six months after entry of the dismissal. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345 [six‐month period ma...

Excerpt: ... And Summons Of Complaint And To Dismiss For Lack Of Personal Jurisdiction Defendants Nicholas Nunno and Aion Robotics LLC's motion "to quash service and summons of complaint and to dismiss for lack of personal jurisdiction" is denied. The complaint for breach of contract, common counts and fraud alleges that defendants represented they had for sale security robots suitable to plaintiffs' needs, but failed to deliver despite a $60,000 payment. De...

Excerpt: ... 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 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: ...tiff must present competent evidence showing imminent and irreparable harm, a likelihood of prevailing on the merits, and that the balance of equities and harms weighs in plaintiff's favor. (Code Civ. Proc. sec. 527(a) ["A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist...

Excerpt: ...The report and recommendation of the judge pro tem is adopted. Defendants shall within 15 days admit or deny the authenticity of the documents referenced in RFA 4 (#164‐ 198). Defendants shall not be obligated to admit or deny whether those documents are true or correct. The court considers the word genuine to be legally equivalent to the word authentic in this context. To the extent Defendants deny the authenticity of any of the referenced doc...

Excerpt: ...ive ruling was sent to the parties via e‐mail. The exhaustion of administrative remedies is a mandatory prerequisite to Plaintiff Nava's first cause of action for civil penalties pursuant to the Private Attorneys General Act (PAGA) and second cause of action for violation of the Fair Employment and Housing Act (FEHA). (Williams v. Superior Court (2017) 3 Cal.5th 531, 545 ["As a condition of suit, an aggrieved employee acting on behalf of the st...

Excerpt: ...pport apposite defenses. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [defenses must be pleaded with same detail as claims in complaint].) Some of the defenses appear totally irrelevant to this case, e.g., assumption of the risk. Defendant's general denials do not support the affirmative defenses. Affirmative defenses must be specially pleaded as they inject a new matter into the case. (See Code Civ. Proc. sec. 431.30(b)...

Excerpt: ... sent to the parties via e‐mail. Defendant's motion to strike is denied. Defendant fails to show that plaintiff cannot base his claim for negligence per se, which is really an evidentiary presumption, on a violation of 17 CCR 30722 and that the allegations at paragraphs 37 through 39 are false, improper, or irrelevant within the meaning of CCP sec. 435. 17 CCR 30722(b) provides that "facilities" such as a bathroom "shall be kept in good repair,...

Excerpt: ...conceded. Plaintiff cannot establish the seventh cause of action for intentional infliction of emotional distress because emotional distress damages cannot be recovered in a survival action. (See Code Civ. Proc. sec. 377.34 ["In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained … and do ...

Excerpt: ...ng moved from 1:30pm to 9:30am tomorrow, Wednesday December 30, 2020. Plaintiff Macy's Inc.'s motion for leave to file first amended complaint is granted. Macy's seeks leave to add factual allegations that clarify and add detail to its claims, as well as to add additional causes of action. California courts have "a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding." (Berman v. Bromberg (1997) 56 C...

Excerpt: ...urth [no causation], and Fifth [causation] affirmative defenses because they fail to state facts sufficient to constitute a defense. (Code Civ. Proc. sec. 430.20(a).) Affirmative defenses inject new matters into the case, rather than simply being responsive to essential allegations of the complaint. (See Code Civ. Proc. sec. 431.30(b)(2); Walsh v. West Valley Mission Comm. Coll. Dist. (1998) 66 Cal.App.4th 1532, 1545‐1546; Houk v. Williams Bros...

Excerpt: ...g the existence of an arbitration agreement. " 'In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration.'" (Rice v. Downs (2016) 248 Cal.App.4th 175, 185, quoting Weeks v. Crow (1980) 113 Cal.App.3d 350, 353.) Whether Defendants intend to raise defenses or file cross‐claims is of no moment. Here, Defendants' motion is...

Excerpt: ...tion in which Plaintiffs seek an injunction against enforcement of Code of Civil Procedure section 1989 on the ground that the statute violates the equal protection and due process clauses of the United States and California Constitutions. (FAC, 3, 12.) "Plaintiffs allege that section 1989 is unconstitutional on its face and particularly as applied to cases in which a party or an officer or employee of a party resides out of state and cannot be c...

Excerpt: ...ounty of San Francisco, the Fine Arts Museums of San Francisco, and Defendant COFAM. The complaint alleges claims for disability discrimination and related causes of action under FEHA arising out of Plaintiff's employment as a vendor and subsequently as an admission attendant and lead cashier for the DeYoung Museum and/or the Legion of Honor Museum. The motion is brought on the ground that Plaintiff does not allege that Defendant engaged in any m...

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

Excerpt: ...eve Stein, 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 th...