Excerpt: ...: which was ordered March 9 2020: until the court in a separate proceeding pending in the Orange County Superior Court adjudicates Davis's claims that Defendant Yungi Qian and others fraudulently induced Davis to stipulate to the JAMS arbitration and Defendant Qian (and others) breached the arbitration contract. Davis asserts that if she prevails in the Orange County action: she will be vested with authority to void the arbitration stipulation. D...

Excerpt: ...OBERT F. HINKS THIRD AMENDED COMPLAINT Defendant's demurrer to the third amended complaint's (TAC) second, third and fourth causes of action is sustained in part and overruled in part; plaintiff is given leave to amend. The TAC adequately pleads a FEHA harassment claim. (ld. at 12:8-12, 10:24-11:11, 13:20-14:18.) Harassment can be based on offensive oral communications in the workplace. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) The TAC...

Excerpt: ...e the default (entered on 3/3/21) and default judgment (entered on 10/14/21) is granted. "Compliance with the statutory procedures for service of process 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." (Am. Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.) A court may vacate a void default/default ju...

Excerpt: ... is granted. The proceedings are ordered stayed pending the outcome of arbitration. The parties agree that the arbitration provision is governed by the Federal Arbitration Act. (Def.'s at 5; Pl.'s opp. at 6:16.) under the FAA, agreements to arbitrate are "valid, irrevocable and enforceable save upon such grounds as exist at law or equity for the revocation of any contract." (9 U.S.C. sec. 2.) Plaintiff Daniela L. Rivera Velasco (Velasco) argues t...

Excerpt: ...rms of service agreement (Coombs Decl., 5:7-8), and in addition, she was also bound by a later January 18, 2021 terms of service agreement (See MPA, fn. 2)-with both governing her use of the Lyft application, website, and technology platform. (ld. at Ex. 2.) Plaintiff states that she did not use the Lyft to ordera ride on August 18, 2019, when the yftdriver ran over her foot. (See Mancillas Decl„ 1:22.) Defendant's reply does not refute Plainti...

Excerpt: ...y 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 consen...

Excerpt: ...n to strike is granted without leave to amend. Plaintiffs complaint describes at most, careless conduct in the collecting of trash. Such allegations are insufficient to impose punitive damages. (See Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1170 (Butte Fire Cases) ["Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere careless...

Excerpt: ...he defendant has been guilty of oppression: fraud: or malice. " A defendant does not need to act intentionally for punitive damages to be found; a showing of malice is sufficient to support a claim for punitive damages Pfeiferv_ John Crane: Inc. (2013) 220 CalApp_4th 1270: 1299. "Malice" is "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carned on by the defendant with a willful and cons...

Excerpt: ...yer, Aung lost on summary judgment. With the lavwerls withdrawal, she is pro per again. In court, Aung has appeared unsophisticated and confused. Government Code 12965(c)(6) gives a court discretion to award attorney fees to a prevailing FEHA defendant. I decline to exercise that discretion here for three reasons. First, Piteau insists he is "entitled" to $48,982.50 in attorney fees from Aung 'based on the friwlous nature" of her claims. (Memo. 5...

Excerpt: ...) 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 stipulation, the hearing will proceed before the Judge Pro Tem who will dec...

Excerpt: ... complaint, Code of Civil Procedure section 583.420(a)(1)" is denied. CCP 583.420(a)(1) gives a court discretion to "dismiss an action" if "[s]ervice is not made within two years after the action is commenced against the defendant." Both sides recognize that, for a Doe defendant (as here), the clock starts with the original complaint's filing and that plaintiff may show "excusable delay." Here, the slip-and-fall plaintiff was pro per when she sue...

Excerpt: ...as the Moving Party based on the same grounds in the pending motion." (Notice of Joinder, 1:24-25.) Defendant Wright is entitled to compel arbitration even though he is a nonsignatory to the terms of service. The amended complaint alleges that Wright was the employee/agent of Lyft, a party to the arbitration agreement. (Amended Complaint, pg. 4.) As an agent/employee, Wright is entitled to seek arbitration. (See Jenks v. DLA Piper Rudnick Gray Ca...

Excerpt: .... I' (UMF 19.) "The papers are to be construed strictly against the moving party and liberally in favor ofthe opposing party; any doubts regarding the propriety of summary judgment are to be resolved in fawr of the opposing party." (Kulesa v. Castleberry (1995) 47 Cal.App.4th 103, 112.) "[T]he separate statement effectively concedes the materiality of whatever facts are included." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (e...

Excerpt: ...2 Cal. App. 2d 527, 530 (1959). Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial 6:617, 5:653 (Rutter: 2022). The classic rule focuses on prejudice: "denying a request to amend a complaint may be appropriate when an unreasonable delay in seeking amendment prejudices the defendant." Payton, 27 Cal.App.5th at 849 (emphasis supplied). Defendant's claim of prejudice is conclusory and vague. Oppo. at 5:8-13. The essence of...

Excerpt: ... Laabs v. City of Victorville (2008) 153 Cal.App.4th 1242, 1253 ["The pleadings delimit the issues to be considered on a motion for summary judgment."l.) Plaintiff failed to maintain his burden of production. (See CCP 437c(p)(1).) An order granting summary judgment terminates the action between the parties and results in an immediate, appealable judgment. (See CCP 437c(m)(1).) Plaintiff alleges causes of action for "preliminary injunction," "writ...

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: ...te service by leaving the copy of the summons and complaint with the front desk clerk at the mailbox center "Postal Chase" in San Francisco on December 17, 2021. (Opp. 17-10:14.) Plaintiff also alleges the process server mailed the summons and complaint to that same address on December 18, 2021. (Id.) Defendant argues that service should be quashed because he was not served in accordance with CCP 415.20(b) because the "Postal Chase" address is no...

Excerpt: ...dants - PAMF and Palo Alto Foundation Medical Group - are "[u]nder its control" and "its affiliates." (Id. at 3:4-6.) Further, the SAC pleads that the three defendants are plaintiff's joint employers, exercising "joint control over" his "wages, hours and working conditions." (Id. at 3:14-17.) Defendants argue that the SAC factually errs because they are "three separate and distinct entities" and not plaintiff's joint employers. (Memo. 5:25, 7:2-3...

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: ...he motion's arguments in its prior orders. Duty. Eric argues that he "owed no duty to plaintiff." (Memo. 7:2.) However, on the Uber defendants' summary judgment motion, the court ruled: "Defendants owed Plaintiff a general duty of care in choosing where and how to offload the passengers." (5/5/22 Order 2:15-16.) Uber driver Eric was the defendant who offloaded the passengers, so this ruling obviously applies to him. Breach. Eric argues that "he d...

Excerpt: ... a notion that it may demur to them. As to the two counts that are asserted against Lyft: The FAC adequately pleads a claim for negligent hiring, supervision and retention. California procedural law applies and it does not require the hyper-specific pleading Lyft advocates. Lyft cites three inapposite California demurrer cases. Aghaji v. Bank of America, N.A. (2016) 247 Cal.App.4th 1110 had 222 plaintiffs and 10 defendants. That is not, as Lyft a...

Excerpt: ...the senior partner, $425 for a more junior lawyer, and $90 for the legal assistant. The hours expended appear reasonable with these exceptions: 2.4 hours to re-do a mistaken complaint to change the date is unreasonable, and I will deduct that time (2.4 x 575). It is unreasonable to charge defendant for time to prepare for and attend an OSC which was caused by plaintiff's delay. For this I deduct 2.8 hours (2.8 x 475). The rates are reasonable for...

Excerpt: ...vely, summary adjudication is denied as moot as to defendant Lobre. Plaintiff dismissed Lobre on 12/13/22. Defendant Har's motion for summary judgment/adjudication is denied. As explained in connection with Allstate's companion motion, there are triable issues of fact whether plaintiff can establish the claim for intentional interference with prospective economic advantage and the claim for punitive damages. (See Levin v. Gulf Ins. Group (1999) 6...

Excerpt: ....) Pro Tem Judge William Lynn, 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: ...ant OPERADORA DE HOTELES LORETO, S. DE R.L. DE C.V (Operadora) is not a named party. It has no standing to bring this motion. The peculiarity of the situation is demonstrated by Operadora's argument that it is "not even licensed to do business in California" (Reply at 3:5) whereas the parties actually sued are so licensed. Opposition at 1:8 ff. 2. Even if Operadora were a party, its offer to stipulate to Mexico as a forum and to toll the statute ...