Excerpt: ...dants*** Complete tentative ruling sent to the parties via e-mail. Granted. The stay extends only to the moving parties here. Defendants (referred to as Kaiser here) petition to send the claims against them to arbitration. Plaintiff Garza does not argue that there is no arbitration agreement, or that he is not bound because he didn't agree to it or did not sign it. He does say he dæsn't recall signing the agreement, but this is nota basis on whi...

Excerpt: ...Rules of Court, rule 3.1702(c). Government Code section 12965(b) has no application to this motion. Section 12965(c)(6), however, provides, "In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall no...

Excerpt: ...ded Complaint And For Entry Of Judgment Defendant Singer's motion to strike the second amended complaint is granted without leave to amend. The filing is "improper" within the meaning of CCP 436(a). First, plaintiffs did not comply with this court's order of January 18, 2023, and they missed the filing deadline for the amended pleading by several weeks without sufficient explanation. (CCP 438(h)(4)(A) ["If an amended complaint is filed after the ...

Excerpt: ...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 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 al...

Excerpt: ...rbitration and stay action is granted. under Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165, Defendants have met their burden by the preponderance of the evidence to show that Plaintiff consented to its terms of service. (See Vasquez Decl.) The controlling arbitration agreement at the time ofthe incident was the 2016 Terms of use. (See Vasquez Decl., Ex. E.) The arbitration agreement within the terms of use delegates "that an...

Excerpt: ...s "personnel management actions,' but our supreme court holds that such actons "can also have a secondary effect of communicating a hostile message" and thus support a FEHA harassment claim. (Roby v. McKesson Corp. (2009) 47 Cal.4th 586, 709.) Also, defendants concede the FAC pleads six non-personnel management actions in less than three years, disparaging plaintiffs national origin and sex. (Memo. 4:3-14.) The FAC also adequately pleads defamati...

Excerpt: ...ts And Request For Entry Of Judgment (PART 1 OF 2) 8MlNUTENERGY US INVESTOR LLC, 8MlNUTENERGY US INVESTOR 2 LLC, AVANTUS LLC (F/K/A 8 MINUTE POWER LLC)'s motion to confirm arbitration award is granted. "Unless a statutory basis for vacating or correcting an award exists, a reviewing court 'shall confirm the award as made."' (Corona v. Amherst Partners (2003) 107 Cal.App.4th 701, 705 (quoting CCP 1285). There is no basis to vacate the award and th...

Excerpt: ...led to relief under CCP 683.170 from renewal of the judgment. (Fidelity Creditor Serv., Inc. v. Browne (21%1) 89 CA4th 195, 199, 105.) A judge may vacate the renewal on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment is incorrect. (CCP 683.170(a)). Here, Defendant fails to raise any meritorious defense, such as providing a reason why the money is not owed to Plaintiff (...

Excerpt: ...r the action is commenced. (CCP sectons 583.210, 583.250; see also Edmon & Karnow, CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 11:51 (Rutter: 2022).) Plaintiff Charles Li filed the First Amended Complaint on 02/04/2019. Plaintiff had three years to serve Defendant with the summons and complaint. On 01/25/23, the court granted Defendant's moton to quash service and set aside the default against Defendant. Plaintiff first argues that De...

Excerpt: ...s request for judicial notice of exhibit C [title report from private insurance company] The report is neither a coun record (Evid. 452(d)) nor a fact that is not reasonably subject to dispute (Evid. 452(h)_) In any event, the lack of omvvnership of a piece of real property is not dispositive since negligence/premises liability can be based on control of the property. In reviewing the sufficiency of a complaint: the court treats as true allegatio...

Excerpt: ...his eponymous law firm from representing the University of San Francisco in this case. USF appealed that order; thus everyone seems to agree the order is automatically stayed. (CRS Corp. v. AtkinsonAVa1sh Joint Venture (2017) 15 872, 886-87.) USF views the disqualification as collateral and wants to continue the case with new counsel to avoid delay. CI, on the other hand: seeks a discretionary stay of the entire action until USF's appeal is decid...

Excerpt: ...f's motion for sanctions pursuant to CCP 128.7 is denied. A CCP 128.7 motion involves a two-step process. The moving party first serves the sanctions motion on the offending party without filing it. The opposing party then has 21 days to withdraw the improper pleading and avoid sanctions ("safe harbor" waiting period). At the end of the waiting period, if the pleading is not withdrawn, the moving party may then file the motion. (CCP 128.7(c)(1); ...

Excerpt: ...lood And Imposing Monetary Sanction. Pro Tem Judge John-Paul Deol, a member of the California State aar 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 bef...

Excerpt: ... of action: "Violation of Proposition 65." The motion pleads one issue: statute of limitations - Karman says it is one year, plaintiff four. Both sides' briefs vex. Karman's memorandum repeatedly miscites its key case Shamsian v. Atlantic Richfield Co. (2CG) 107 Cal.App.4th 957 as being at 132 Cal.App.4th. (Memo. 4:28, 5:15.) Plaintiffs opposition lacks page numbers and key pin cites and is garbled (see, e.g., id. at 3:18). Shamsian arrived at a ...

Excerpt: ...ort And Recommended Order No. 9. "Plaintiffs motion for clarification and/or reconsideration of the February 10, 2023 court order adopting the discovery referee's report and recommended order no. 9" is denied. A reconsideration motion must be "based upon new or different facts, circumstances, or law" and a valid reason for not presenting them earlier. (CCP Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 15CL) The moving party shall state by aff...

Excerpt: ...accommodations." Brown v. Smith (1997) 55 Cal.App.4th 757, 786-787; see also Civil Code sæ. 51 et seq. Defendants argue that plaintiff does not plead sufficient facts showing that he was discriminated against because of his race. See e.g., Reply at 2 (plaintiff fails to allege conduct was "substantially motivated by his race"). But as noted below, the amended complaint at Para. 30 alleges exactly that. In any event, the court must liberally cons...

Excerpt: ... of action for "intentional tort" fail under CCP 430.10(e) and are barred because Illing failed to seek administrative remedies in California. Mat. 3:7-15. Illing argues that HSS "is not actually a functioning independent legal entity" and that the employees conduct which created an alleged hostile work environment "must be imputed to the Harvey Defendants." Opp„ 3:8-26. [The Harvey defendants were dismissed on jurisdictional grounds (Reply, 2:...

Excerpt: ...Defendants Requests For Production, Set One; And For Sanctions. Pro Tem Judge Peter Catalanotti, 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...

Excerpt: ... a legal doctrine that imposes liability on persons who, although not actually commi
«ng a tort themselves, share with the immediate tor
žeasors a common design or plan in its perpetra
Ÿon." (Applied Equipment Corp. v. Li
©on Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11.) The SAC pleads a common design and plan by "All Defendants" to "commit fraud, conversion and civil the
L." (Id. at 20:11-19.) Being among "All Defendants" (SAC 2:1-12), Ms...

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: ...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: ...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: ...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 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: ...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: ...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 ...

Excerpt: ...ion to compel arbitration is denied. "The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement." (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 859.) Here, defendant fails to maintain its burden since it fails to establish the existence of the arbitration agreement (including the delegation clause). (See Malone v. Superior Court (2014) 226 Cal.App.4th 1551, ...

Excerpt: ... to be granted lightly. (See 8 Witkin, California Procedure (5th ed. 2008) p. 903; Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471.) In particular, when a preliminary injunction is sought, the case has yet to be adjudicated, for "no trial on the merits" has been held. (Id.; SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.) Two "interrelated factors" are weighed "whe...

Excerpt: ...cause Defendant's employee sexually harassed and assaulted Plaintiff in the bathroom at Westfield Centre. The complaint pleads that Defendant's employee opened the bathroom stall door, watched Plaintiff, a dependent adult with physical and mental disabilities, as he was using the toilet, then minutes later "approached Plaintiff from behind, cranked up, and slammed Plaintiff in the back using his mop as a weapon," and thereafter, Defendant release...

Excerpt: ...emurrer. (See CCP 452; Berger v. Varum (2019) 35 Cal.App.5th 1013, 1018 ["We accept as true all well-pleaded allegations in the operative complaint"].) Here, the amended complaint alleges ultimate facts that the period of time to submit a government claim was tolled during the contractual administrative process and the tolling ended on December 7, 2021. (Amended Complaint, pars. 8, 18.) The parties' agreement, which is attached to the amended com...

Excerpt: ...on Pending Completion Defendants' motion to compel arbitration and stay is denied. A party seeking to compel arbitration always bears the burden to establish the existence of a written agreement to arbitrate by a preponderance of the evidence. (See Rosenthal v. Great W. Fin. Sec. Corp. (1996) 14 Cal.4th 394, 413.) Here, defendants fail to maintain that burden. The only identified arbitration agreement pertains to an unrelated "construction agreem...

Excerpt: ...uses of action two and three. Doe 2 alleges sufficient facts that SFUSD knew or should have known that defendant Chan was likely to engage in sexual abuse. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591 ["To prevail on his negligent hiring/retention claim, [plaintiff] will be required to prove [defendant] knew or had reason to believe [the perpetrator] was likely to engage in sexual abuse. [citati...

Excerpt: ...econd cause of action is denied. The "complaint for declaratory relief" regards insurance coverage. In its complaint's first cause of action ‐ as to which summary adjudication is not sought ‐ "Allied World seeks a judicial determination that there is no coverage under the Allied World Umbrella Policy." (Id. at 11:18‐20.) In the second cause of action ‐ as to which summary adjudication is sought ‐ "Allied World seeks a judicial determina...

Excerpt: ...sue regarding whether petitioner complied with the grievance timing requirements of the parties' Collective Bargaining Agreement ("CBA"). That procedural issue is a matter for the arbitrator to decide. (See Local Joint Exec. Bd. v. Mirage Casino‐Hotel, Inc., 911 F.3d 588, 596 (9th Cir. 2018) [explaining that "timeliness, waiver, and other 'gateway' procedural matters growing out of the dispute are for [the] arbitrator."]; John Wiley & Sons, Inc...

Excerpt: ...0, 9:4‐11:3.) Defendants argue that who improperly received the information must be pled with specificity (Memo. 3:23‐24), but the opinions they cite do not so hold. Demurrer overruled. 2 (Civil Code 1798.82 violation): The complaint adequately pleads violation of Civil Code 1798.82. (Id. at 11:4‐25.) Defendants argue that when a security‐system breach occurred must be pled, but the complaint does that. (Memo. 5:8‐9; Cmplt. 8:12‐15.) ...

Excerpt: ...Exhibit 5, 17(a).) The court overrules plaintiff's objections to that declaration. Defendant, however, waived the right to arbitrate and waived the delegation clause too. Plaintiff filed this case on November 23, 2021, and defendant answered the complaint on January 28, 2022. The Federal Arbitration Act ("FAA") applies to the parties' agreement and the issue of waiver is a matter of federal law. (See Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5...

Excerpt: ...is granted. Plaintiff alleges he was injured by stepping on a vault lid that gave way. At least six parties (including plaintiff) have potential culpability. (Memo. 5:20‐6:2.) One of them, Harrigan Weidenmuller Co., filed an opposition to the good faith motion. Harrigan focuses on its notion that not enough discovery has been done to allow a good faith settlement. (Opp. 2:26‐3:19, 3:28‐4:17, 4:23‐5:4.) However, CCP 877 motions are often g...

Excerpt: ...he representation regarding the number of cups that could be made from the can. At all times, Plaintiff believed and had a reasonable expectation that the labeling on the Class Products was truthful and accurate." (Id. at 15:3‐6.) This suffices to plead reliance under the Unfair Competition Law and the Consumer Legal Remedies Act. In this context, expectation and reliance are synonymous ‐ "a distinction without a difference." (Hale v. Sharp H...

Excerpt: ...C.'s Motion Of Defendants For Leave To Submit Tardy Expert Witness Information. Pro Tem Judge John-Paul Deol, 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 th...

Excerpt: ...) Plaintiff alleges that defendant is liable to him pursuant to Labor Code sec. 558.1. "[T]o be held liable under section 558.1, an 'owner' ... must either have been personally involved in the purported violation of one or more of the enumerated provisions; or, absent such personal involvement, had sufficient participation in the activities of the employer, including, for example, over those responsible for the alleged wage and hour violations, s...

Excerpt: ...aining Confirmation Of Award. Respondent's "motion for attorneys' fees incurred in defeating petition to vacate or, in the alternative, correct arbitration award and obtaining confirmation of award" is denied. The parties agree that the relevant provision of their arbitration agreement is: "The arbitrator may award one of the parties all or part of its costs and expenses of arbitrating (including attorneys' fees and disbursements) if he or she co...

Excerpt: ...d documents since there is no evidence to authenticate them. (See Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 184 ["Judicial notice may be taken of 'the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute r...

Excerpt: ... 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 portion(s) of the tentative ruling that the party contests....

Excerpt: ...lity. (Id. at 9:1‐24; CACI 2500.) Defendants cite no authority for their notion that plaintiff must elect one of her three bases as "the substantial motivating reason" for discrimination. (Memo. 9:10‐ 22.) 2 (harassment [Gov. Code 12940(j)]): The complaint adequately pleads harassment based on age, gender and disability. (Id. at 10:1‐11:2; CACI 2521A.) Defendants cite no authority for their notions that plaintiff must elect one of her three...

Excerpt: ...gligence claims against TRITON are premised on vicarious liability for the alleged negligence and intentional torts of Mr. Markeith White ("WHITE")." (Points & Authorities, 1:27‐ 2:1.) Such a ruling does not completely dispose of the case against defendant and therefore, summary judgment would be improper. Moreover, the unsworn incident report that defendant relies upon shows that its admitted employee (Mr. Shaikh) worked in concert with Mr. Wh...

Excerpt: ...oena For Personal Appearance And Production Of Documents And Things And Deposition Subpoena For Production Of Business Records Request For Sanctions In The Amount Of 2688. 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 agr...

Excerpt: ...al obligations and breach. (Not. 1:15‐18; FAC 6:5‐8, 31:1‐22.) Barclays' notion that a contract claim must be pled with specificity is mistaken. (See Not. 1:15‐18.) Demurrer overruled. 2 (fraud [concealment]), 3 (intentional misrepresentation), 7 (Business & Professions Code 17200): The FAC pleads fraud with insufficient specificity as to Barclays. (Not. 1:19‐2:2; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 ["how, when, where, to...

Excerpt: ...and 34. As explained in the demurrer, plaintiff pleads a cognizable claim to recover the bonus and funds from the profit‐sharing plan. Granted without leave to amend as to the punitive damages allegations (FAC 40, 43 (second par. 43), 50, and Prayer (D). A party cannot recover punitive damages for a contractual breach. (See Civil Code sec. 3294(a).) A party also may not recover punitive damages for a Labor Code violation. (See Brewer v. Premier...

Excerpt: ...e facts of which are disputed. Plaintiff Tracy Yu has agreed to settle for $5,001 with the driver (Marini) and owner (Poppel) of one of the other two vehicles. The third vehicle's driver, Peter Giordano, opposes a good faith determination with three points. First, he says his vehicle was pushed into the Yu vehicle by the Marini/Poppel vehicle, so he has limited liability compared to them. (Opp. 1:25‐2:3.) Second, Giordano reports that, two week...

Excerpt: ...haust administrative remedies." (Id. at 1:5‐2:15.) This is premised on the notion that statutes of limitations were triggered in October 2018. (Memo. 3:23‐4:2, 5:17‐23.) However, the SAC pleads that, in 2019 and 2020, plaintiff "attempted to work with" defendants "to place him in another position" ‐ efforts ultimately "rebuffed." (Id. at 4:14‐25.) At the pleading stage ‐ where pled facts must be accepted as true ‐ this suffices to d...

Excerpt: ...uppressed material facts. (Cmplt. 1:7-22:4.) Second, the complaint adequately pleads that Honda had a duty to disclose the facts regarding sensing defects to plaintiff, as Honda had knowledge of material facts not known to him. (See Stickrath v. Globalstar, Inc. (ND. Cal. 2007) 527 F.Supp.2d 992, 1000-01.) This duty was based on Honda's advertising and other promotional efforts to buyers such as plaintiff, including through Honda's agent-dealers....

Excerpt: ...al the docket is denied. The First Amendment provides a right of access to civil trials and proceedings, including civil litigation documents filed in court as a basis for adjudication. (NBC Subsidiary (KNBC‐TV), Inc. v. Super. Ct. (1999) 20 Cal.4th 1178, 1208‐1209 & fn. 25.) Under rules 2.550 and 2.551 of the California Rules of Court, the court may order a record sealed only upon making express findings that (1) There exists an overriding i...

Excerpt: ...is denied. The existence and terms of a contract are not proper subjects of judicial notice when the opposing party objects. (Travelers Indemnity Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 354‐355 & fn. 9 [trial court erred in sustaining demurrers to equitable contribution and equitable indemnity causes of action]; compare Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 572 [trial court did not er...

Excerpt: ...rbitration agreements, theirs permits a party to "seek provisional injunctive relief" from a court "to ensure that the relief sought in the arbitration is not rendered ineffectual by interim harm." (Heaps Dec. Ex. 1 21(d).) This is particularly apt where, as here, an arbitration demand had been filed, but no arbitrator yet selected. Plaintiff sought provisional injunctive relief from this court under the arbitration agreement. (Id.) Claiming it p...

Excerpt: ...y Sanction. Pro Tem Judge David McDonald, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who...

Excerpt: ... Fees. Plaintiff's motion for judgment on the pleadings ‐ the functional equivalent of a demurrer ‐ is denied. In People ex rel. Becerra v. Sup. Ct. (2018) 29 Cal.App.5th 486, as here, plaintiffs moved for judgment on the pleadings against the state of California. As here, the state's answer denied all material allegations. (Id. at 499.) Judgment was nonetheless granted. The Court of Appeal reversed, holding: "the trial court should have deni...

Excerpt: ...R CORPORATION) motion for summary judgment is granted. The undisputed evidence demonstrates that defendants are mere insurers and it is improper to name then as defendants in an action against their insured, who is the alleged tortfeasor. (See Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403 [third party claimants generally cannot sue insurers]; Shaolian v. Safeco Ins. Co. (1999) 71 Cal.App.4th 268, 271["Because the insurer's dut...

Excerpt: ...rging order against the transferable interest of the judgment debtor for the unsatisfied amount of the judgment. A charging order constitutes a lien on a judgment debtor's transferable interest and requires the limited liability company to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor." (Cal. Corp. sec. 17705.03.) This court entered a judgment in favor of Plainti...

Excerpt: ... [and/or harassment] based on sexual orientation under the Fair Employment and Housing Act." (Dmr. Not. 3:4‐11.) I disagree. While this is in the main a whistleblower case, the FAC also adequately pleads the elements of FEHA discrimination and harassment claims. (See, e.g., CACI 2500, 2522A; FAC 2:4‐8, 2:26‐3:4, 3:9‐25, 8:22‐12:27, 15:10‐16:22.) In modern practice, demurrers are of diminished importance; "wherever possible, cases shou...

Excerpt: ...nt. The "motion to vacate and set aside the January 5, 2022 dismissal of Mitchell Engineering's cross‐complaint" is denied. The motion is based on the claim that Mitchell president Curtis Mitchell was "surprised by the dismissal." (7/1/22 Memo 2:1‐9, 4:6‐14; CCP 473(b) ["surprise"].) However, the deposition of Mitchell's lawyer has now been taken and it establishes that she addressed the cross‐complaint's dismissal with Mr. Mitchell and h...

Excerpt: ... DEFENDANT MARIO SILVA GAVAO's Motion To Compel Plaintiff Rolin Smith's Further Verified Responses To Request For Production Of Documents, Set Two, To Produce Documents And A Privilege Log, Request For Monetary Sanctions: 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 th...

Excerpt: ..." Lyft's "transportation network carrier [TNC] platform" "[a]t the time" plaintiff "entered his vehicle." (FAC 2:10‐21.) The Lyft driver "abandoned" plaintiff at a BART station, where she was "kidnapped, sexually battered and raped." (Id. at 2:22‐27.) These pled facts must be taken as true on demurrer. (Del E. Webb Corp. v. Structural Materials Corp. (1981) 123 Cal.App.3d 593, 604.) The demurrer argues that Lyft owed plaintiff no duty. For th...

Excerpt: ...ction. The body of the motion, however, seeks dismissal for a different reason‐failing to bring this action to trial within three years of the filing. This inconsistency renders the motion defective. Second, the motion lacks merit. Defendant fails to show that a discretionary dismissal per CCP 583.420(a)(2)(A) [bring to trial within three years] is warranted. The pandemic and defendant's serial and unmeritorious motions to vacate have delayed p...

Excerpt: ... MARINA GABRIEL's Motion Regarding Defendant Sandra Mcgee's Failure To Comply With The Courts August 1, 2022 Order Regarding Payment Of $3,321.50 In Sanctions; Request For Additional Monetary Sanctions Against Defendant Sandra Mcgee And Her Attorney Of Record, Emmanuel Enyinwa, In The Amount Of $1,722.87: Pro Tem Judge John‐Paul Deol, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a tempor...

Excerpt: ...bility ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, SEC. 51, subd. (b).) A plaintiff can recover under the [Unruh Act] on two alternate theories: (1) a violation of the ADA (Civ. Code, SEC 51, subd. (f)); or (2) denial of access to a business establishment based on intentional discrimination." (Martinez v. Cot'n Wash, Inc...

Excerpt: ...t as a matter not subject to dispute. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 ["Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning."]; Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 573 ["Although the existence of a document may be judicially noticeable, the truth of the statements contained in t...

Excerpt: ...tutory Waiver Pursuant To Cal. Civ. Proc. 1281.97 And Request For Sanctions Under Cal. Civ. Proc. 1281.99 In The Amount Of $7,290.00. Denied. Although the moving papers and their citation of CCP SEC 1281.97 suggest defendants were late in payment of the initial fee to commence arbitration, the reply disavows that argument. Instead, it argues that defendants failed to pay under SEC 1281.98, which relates to fees payable to "continue" the arbitrati...

Excerpt: ...motion is off calendar as to defendant Matthew Jacob Feaver since he filed for bankruptcy. (See Notice of Stay of Proceedings filed 11/4/22; Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1488 ["a bankruptcy stay is only effective as to the party in bankruptcy; a plaintiff must proceed against nonbankrupt defendants."]; Shorr v. Kind (1991) 1 Cal.App.4th 249, 258 [stay applies only to bankruptcy debtor].) There is a liberal policy ...

Excerpt: ...rsuant to an arbitration agreement, when a person is to serve as a neutral arbitrator, the proposed neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial." (CCP 1281.9.) The court shall vacate the award if the court determines an arbitrator making the award "failed to disclose within the time required for disclos...

Excerpt: ...rsuant to an arbitration agreement, when a person is to serve as a neutral arbitrator, the proposed neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial." (CCP 1281.9.) The court shall vacate the award if the court determines an arbitrator making the award "failed to disclose within the time required for disclos...

Excerpt: ...dual PAGA claim is granted and the court stays litigation of the remaining representative PAGA claim. Plaintiff brings this action individually and on behalf of other aggrieved employees. (See Complaint, Caption and par. 1.) Defendant bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Here, defendant demonstrates...

Excerpt: ... any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff's 18th birthday, the time for commencement of the action shall be the later of the following: (1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff" and instructs that "(3) This section applies to any action described ...

Excerpt: ...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 may be si...

Excerpt: ...lic entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public e...

Excerpt: ...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 parties to the mo...

Excerpt: ...tional discovery. "A trial court has discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues." Burdick v. Sup.Ct. (2015) 233 Cal.App.4th 8, 30. "In order to meet its burden of proof ( 3:384 ff.), plaintiff is entitled to conduct discovery with regard to the issue of jurisdiction before the hearing on the motion to quash; e.g.,...

Excerpt: ...duction. CCP 437c(p)(2). When analyzing a summary judgment motion, "the moving party's affidavits are strictly construed while those of the opposing party are liberally construed." (Fraizer v. Vlekura (2001) 91 Cal.App.4th 942, 945; see also Scalf v. D.B. Log Homes, Inc., (2005) 128 Cal.App.4th 1510, 1519 ["In reviewing the evidence, we strictly construe the moving party's evidence and liberally construe the opposing party's and accept as undispu...

Excerpt: ...r:CGC22599199Case Title:KIMI NORWAY VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT ET ALCourt Date:NOV‐18‐2022 09:30 AMCalendar Matter:MOTION TO STRIKE COMPLAINTRulings:Matter on calendar for Friday, November 18, 2022, Line 10, 3. DEFENDANT JONATHAN LEE'S MOTION TO STRIKE COMPLAINT. *THE COURT'S FULL AND COMPLETE TENTATIVE RULING HAS BEEN EMAILED TO ALL COUNSEL* The notice of the anti‐SLAPP motion targets the entire complaint. The Supreme Court ...

Excerpt: ...s v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 391.) Plaintiff brought this civil suit against Defendant for her judicial decision in Plaintiff's case. Defendant now brings this demurrer on the grounds of judicial immunity. "[T]he doctrine of civil immunity of the judiciary in the performance of judicial functions is deeply rooted in California law." (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 852 [internal quotations omitted].) "The decisions ...

Excerpt: ...nd a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense." (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Here, defendant establishes the existence of an arbitration agreement. (Hansen Decl., pars. 5‐7, Ex. 1.) In opposition, plaintiff demonstrates that the agreement is unconscionable and unenforceable. Plaintiff's agreement is very similar to the ...

Excerpt: ...a Nationwide employee; it appointed her to represent plaintiff. Mayfield declined a settlement offer under the $1‐million policy limits, then suffered an $8.2‐million trial loss, exposing plaintiff. He sued Nationwide and Mayfield; the latter answered. Nationwide demurs to the complaint's third and fourth counts, for legal malpractice under negligence and breach of fiduciary duty theories. Nationwide's argument as to each is that ‐ though "...

Excerpt: ...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 via ...