Excerpt: ...y 26, 2022." Defendant's demurrer was filed June 7, 2022 ‐ 12 days late. (See CCP 430.40; Jackson v. Doe (2011) 192 Cal.App.4th 743, 750 (court's discretion to consider untimely demurrer or not).) Moreover, the FAC adequately pleads an Unruh Act claim. Legally blind plaintiff Andres Gomez cannot use a computer without screen reader software (SRS). (FAC 3:15‐19.) Defendant's dba Your Home SF has a website that offers "information about houses ...

Excerpt: ...a clear and unmistakable delegation clause. (See AT&T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 649 (1986).) Here, petitioner waived/abandoned its right to compel arbitration. Petitioner was aware of the Shum grievance by September 19, 2019. (Quinn Decl., Ex. 7.) Petitioner filed the grievance on December 19, 2019. (Petition, Ex. B.) The parties' collective bargaining agreement provides that petitioner has twenty‐two...

Excerpt: ... vehicle that Miguel Barbonier drove and Mirka Del Castillo owned. (PRDSS 2.) Prieto allegedly bore fault for the accident by failing to yield to the Barbonier‐driven vehicle. (PSS 1.) Prieto was apparently working for PacPizza. In February 2019, plaintiffs settled bodily injury claims with the impecunious Barbonier and Del Castillo for policy limits. (PRDSS 3‐4; PSS 6‐8.) Plaintiffs signed "bodily injury only" releases of Del Castillo, Bar...

Excerpt: ...nting Defendant Ccsfs Motion For Summary Judgment Based, In Part, On Ccp 473(B). Plaintiffs' "motion for reconsideration of the order granting defendant CCSF's motion for summary judgment based, in part, on CCP 473(b)" 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 1008; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; see also ...

Excerpt: ...inistrative Mandamus And Traditional Mandamus. The City and County of San Francisco's motion "for entry of judgment denying writ for petition of administrative mandamus and traditional mandamus" is granted. On May 11, 2022, I held an extensive evidentiary hearing on the City's motion for enforcement of the settlement agreement governing this case. An order was filed May 13 and petitioner Krista Gillette was notified of it on May 16. Gillette's Ju...

Excerpt: ... fees after plaintiff's alleged false statements and concealments regarding the statute of limitations. (Id. at 5:1‐4, 5:28‐6:4.) This part of the demurrer is overruled. Second, the "breach of fiduciary duty" claim is based on the notion that defendant should have sued engineering consultants retained by an insurer. This sounds in negligence, not fiduciary duty; plaintiff cites no contrary authority. This part of the demurrer is sustained wit...

Excerpt: ...e CCP 474 "phrase 'ignorant of the name of a defendant' is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant." (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) Moreover, "section 474 is to be liberally construed" and the "fact that the plaintiff had means to obtain information is irrelevant." (Id.) Here, I credit plaintiffs' stateme...

Excerpt: ...12 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...

Excerpt: ...ngful conduct of its agent, even if that conduct is criminal, in one of three ways: (1) if the principal directly authorizes ... [the tort or] crime to be committed; (2) if the agent commits the tort in the scope of his employment and in performing service on behalf of the principal, regardless of whether the wrong is authorized or ratified by [the principal], and even if the wrong is criminal; or (3) if the principal ratifies its agent's conduct...

Excerpt: ...confirm arbitration award is granted. Respondent Current Construction fails to show that the award should be corrected pursuant to Code of Civil Procedure section 1286.6. "Where a petition to confirm an award is at issue, the court is limited in its power to review the findings of the arbitrator and has narrow grounds upon which evaluate the arbitrator's award." (Cinel v. Christopher (2012) 203 Cal.App.4th 759, 769.) The Court determines that the...

Excerpt: ...may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are 'intimately founded in and intertwined' with the underlying contract obligations. [citations] By relying on contract terms in a claim against a nonsignatory defendant, even if not exclusively, a plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement." (Bouc...

Excerpt: ...ned without leave to amend. Plaintiff was previously granted leave to amend this cause of action. The first amended complaint fails to cure the defects identified by the Court and further leave to amend is therefore denied. Plaintiff, again, pleads no facts and cites no contractual language demonstrating that she is an intended third party beneficiary of the management agreement. There are no facts showing that "permitting the third party to brin...

Excerpt: ...r of the CA 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 mtn. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the mtn may be heard by the Judge Pro Tem (JPT). If all parties to the mtn sign the stipulation, the hearing will proceed before the JPT who will decide the mtn with the same authority as a Superior Court Judge...

Excerpt: ...earing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Judge Pro Tem (JPT). If all parties to the motion sign the stipulation, the hearing will proceed before the JPT 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 mtn sign the s...

Excerpt: ...tion or aid to help the court interpret a contract. It is not a basis for liability under the UCL. (2) Delete the reference to CC 3294(c)(3). That provision defines "fraud" for the purpose of the punitive damages statute. Again, that provision is not a basis for liability under the UCL. (3) Remove the request for damages on the UCL claim. A party bringing a UCL claim can only recover restitution or an injunction. (See Korea Supply Co. v. Lockheed...

Excerpt: ...ifornia 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 authority as a Superior...

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: ...nd Eleventh Causes Of Action From His Complaint. Defendants' "special motion to strike plaintiff's tenth and eleventh causes of action from his complaint (CCP 425.16)" is denied. Plaintiff was employed by defendant Jacobs Engineering Group; defendant Steven Defant was a Jacobs supervisor. Plaintiff alleges that Defant slandered him in 2021 by telling (1) "multiple staff members" at Jacobs that plaintiff "was coming to work drunk or impaired" (Feb...

Excerpt: ... attorney fee dispute is denied. While conceding that "ordinarily the convenience of parties is not taken into consideration," defendants' sole ground for their motion is defendant Kursheed Husain's convenience. Husain's declares that her "medical necessities" are a "hinderance" to a trial in San Francisco. While this court is sympathetic, Husain does not explain how the hinderance would be less in neighboring San Mateo County. Husain reports spe...

Excerpt: ... entered on 7/27/21 is granted. California has a strong policy to decide cases on the merits and defendant demonstrates extrinsic mistake as a basis for equitable relief. In Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982, the California Supreme Court provided the following elements for equitable relief: (1) the defaulted party must demonstrate that it has a meritorious case; (2) the party seeking to set aside the default must articulate a satisf...

Excerpt: ... makes the arbitration provision unenforceable, fails. AB 51 is preempted by the Federal Arbitration Act ("FAA"). (Cal. Lab. Code sec. 432.6(f) ["Nothing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act"]; Chamber of Com. of United States v. Bonta (9th Cir. 2021) 13 F.4th 766, 781 ["we hold that Government Code [section] 12953 and Labor Code [section] 433 are...

Excerpt: ...ffer and that the licensed hospital or agency is unlikely to prevail ultimately on the merits." (CCP 1094.5(h)(1).) Petitioner fails to demonstrate that respondent is unlikely to prevail on the merits. Petitioner contends that respondent violated Business and Professions Code section 2335 (c)(1) by not according proper weight to the administrative law judge's ("ALJ") decision. But that statute provides that the Board shall give great weight to th...

Excerpt: ...f the summary adjudication statute. (See Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241-242.) Plaintiff is attempting to summarily adjudicate factual issues under the guise of duty and/or not completely disposing of the issue of duty by attempting to parse it up. (See CCP 437c(f)(1).) The court cannot summarily adjudicate an issue of duty in a piecemeal fashion under CCP 437c(f)(1). Plaintiff's motion for summary adju...

Excerpt: ...ice. There is thus a disputed issue of fact whether plaintiff was an employee under the tests enunciated in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 and S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. Evidence indicates that plaintiff acted independently as an auditor and the parties decided to create an auditing business partnership. (Herrera Decl. Ex. C, [Plaintiff...

Excerpt: ... defendants owed a contractual duty to pay him. But plaintiff does not plead a breach of contract cause of action and his separate statement of undisputed fails to set forth clearly the terms or the type of alleged contract between the parties. A motion for summary adjudication must be addressed to the claims or defenses raised in the pleadings. (See 580 Folsom Assoc. v. Prometheus Develop. Co. (1990) 223 Cal. App.3d 1, 14.) Plaintiff fails to ma...

Excerpt: ..., 2022 (entered on March 3, 2022) affirming those costs is denied. The Court of Appeal opinion states: "Respondents are entitled to costs on appeal." (Lau Decl. 5, Exhibit D at p. 19.) This court cannot overrule that determination. If plaintiff believed that that ruling was erroneous, it was incumbent upon her to seek relief from the Court of Appeal before the remittitur issued. When an appellate court directs in its opinion a party is to recover...

Excerpt: ... hospital. Defendant "moves for summary judgment on the ground that the expert declaration of" Dr. Zoltan Turi "confirms that the standard of care was met in all respects." (Memo. 5:8‐11.) However, the expert declaration of Dr. D. Preston Flanigan disputes Dr. Turi's opinions in several material respects, leaving triable issues for a finder of fact. (CCP 437(c); Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983‐85.) ...

Excerpt: ...s, Set One And Request For Monetary Sanctions. Pro Tem Judge Steven Spaulding, 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...

Excerpt: ... APPROXIMATELY 2:42 P.M. *** Pro Tem Judge Steven Spaulding, 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 th...

Excerpt: ...ts To Defendant Herb Thomas (Part 1 of 3 for purposes of entry of Tentative Ruling). Pro Tem Judge Steven Spaulding, 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 ...

Excerpt: ... 1 of 2 for purposes of entry of Tentative Ruling). Pro Tem Judge Steven Spaulding, 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...

Excerpt: ...y judgment in less than a year. Counsel (and the court) are commended for that. Defendant is the prevailing party and is due contractual attorney fees and costs. Papers on the initial fee motion (and this one) joust about who did what to whom during the litigation. I thus requested, and received, daily billing records of defendant's counsel. Having read those records, and based on 36 years of litigation experience, I find the hours expended and t...

Excerpt: ... Ruling). Pro Tem Judge Bruce Highman, 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 wi...

Excerpt: ...s In The Amount Of $3,255.85 Jointly And Severally Against Defendant And His Counsel Joel Glaser. Plaintiff seeks an order compelling Defendant to produce its PMK (Mr. Ruffino) for further deposition and for sanctions. Plaintiff was able to take Defendant's PMK deposition on 2/22/22 but only for a short period of time due to Mr. Ruffino's scheduling limitations. The parties rescheduled Mr. Ruffino's continued deposition to 3/3/22. However, due to...

Excerpt: ...sec. 437(b) ["Application for this relief shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (emphasis added)].) Plaintiff's counsel filed a request for dismissal of the "entire action of all parties and all causes of action" on August 4, 2021 and dismissal was entered the same day. (Ellsworth Decl., Ex. 3.) Plaintiff's counsel did not bring this motion until Ma...

Excerpt: ...ments And Imposing Monetary 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, the hearing will procee...

Excerpt: ...which caused the injury. While some of Mr. Comisky's deposition testimony suggests that the City did not own or control the tree that injured Mr. Comisky (e.g. Ex. 5a attached to Mr. Comisky's depo.), other deposition testimony and discovery responses suggest that it did. (See Rogers Decl., Ex. R [Mrs. Comisky Depo.], 37:2‐23; Exs. D, E, G; Ex Q [Mr. Comisky Depo.] 61:3‐7; 62:19‐25; 63:21‐64:7; 139:9‐13; UMF 7.) Plaintiffs' interrogator...

Excerpt: ...intiff's "complaints to Aaron Schilke and human resources." (FAC 6:23‐7:4, 9:21‐10:18, 4:12‐ 6:22, 7:9‐9:21, 10:20‐12:14; 3/21/22 Order 2:22‐24.) The FAC also alleges the timing of defendants' actions and their effect on plaintiff's employment. (FAC 4:12‐6:22, 7:9‐9:21, 10:20‐12:14; 3/21/22 Order 3:11‐13.) The FAC also alleges defendants' awareness of plaintiff's protected activities. (FAC 6:23‐7:4, 9:21‐10:18; 3/21/22 Ord...

Excerpt: ...sentative on their behalf." (CCP 377.60 (emphasis added).) Here, both three heirs and the personal representative have sued, and P.J Helicopters' demurrer correctly claims misjoinder. As noted, CCP 377.60's plain language allows suit by a decedent's heirs or personal representative, but not both. No ambiguity exists, so the statute's "plain meaning controls." (Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 534.) Moreover, appellate courts...

Excerpt: ...d Truth Of Matters In Requests For Admission, Set One, To Plaintiff Kathleen Haney; Request For Monetary Sanction (Part 1 of 2 for purposes of entry of Tentative Ruling). Pro Tem Judge Sigrid Irias, 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 agreein...

Excerpt: ...tative ruling) Defendant Fu's motion to declare plaintiff William Mora a vexatious litigant is granted. CCP 391(b)(1) provides a vexatious litigant is one who "[i]n the immediately preceding seven‐year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at lea...

Excerpt: ...s punched by a Lyft driver in a November 2019 dispute over a ride in Arizona. Defendant bears the burden of proof on a non conveniens motion, "meaning defendant must provide the trial court with sufficient evidence to enable it to carry out its weighing and balancing analysis." (Edmon and Karnow, California Practice Guide: Civil Procedure Before Trial (TRG 2016) 3:408.5, citing National Football League v. Fireman's Fund Insurance Co. (2013) 216 C...

Excerpt: ...rsuant to which they agreed that judgment would be entered against Defendant. Defendant now seeks dismissal with prejudice. But the parties' compromise does not include an express provision requiring the action be dismissed with prejudice. (See Arriagarazo v. BMW of North America, LLC (2021) 64 Cal.App.5th 742, 749 ["under section 998, entry of judgment is the expected and standard procedural result unless specific terms and conditions stated in ...

Excerpt: ...th. Ru Zhu's "motion in opposition to co‐defendant Joshua Mu's notice of application and application for determination that settlement was made in good faith" is denied. The settlement is in good faith. Zhu and Mu were the drivers in a two‐vehicle accident; plaintiff was a passenger in Mu's vehicle. Mu has settled for his $300,000 insurance policy limits. The nonsettling party has the burden of showing that the settlement is "so far 'out of t...

Excerpt: ...defendant challenges jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service. (See Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439‐1440.) Plaintiff must present competent evidence to maintain his burden and a declaration that is not signed under penalty of perjury, as required by CCP Sec. 2015.5, is in...

Excerpt: ...hey did not owe a duty of care to plaintiff, but purposefully exclude germane facts to this case. Defendants ignore that Mr. Weith was driving erratically in the garage prior to the incident, left the premises, and then returned and continued to drive erratically, which ultimately led to plaintiff's injuries. Defendants also fail to acknowledge that they had security and cameras (many non‐ functioning) at the premises. (Plaintiff's evidence, Ex...

Excerpt: ...uirements 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 tel...

Excerpt: ...Ruling). 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 w...

Excerpt: ...act, defamation, slander, fraud, violation of privacy, assault, conversion, violation of the computer abuse act, invasion of privacy, trespass, and breach of fiduciary duty. The cause of action for breach of contract fails to state a cause of action and whether the purported contract is written, oral or implied. (CCP 430.10(e) & (g).) Plaintiff does not clearly allege how he entered into an agreement with defendant, his performance or excuse, or ...

Excerpt: ...ILITY COMPANY, MAXXVIN LLC, A FLORIDA LIMITED LIABILITY COMPANY) motions to quash are continued to August 17, 2022, to allow for limited jurisdictional discovery. The complaint sufficiently names Maxxvin LLC, the process server fixed the technical defects in the proofs of service, and the service statutes are liberally construed where there is actual notice. (See Pasadena Medi‐Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778.) When ...

Excerpt: .... (1994) 24 Cal.App.4th 1426, 1439‐1440 [plaintiff's burden to demonstrate jurisdiction including proper service].) The Oakland residence where the substitute service occurred is defendant's "dwelling house, usual place of abode, , or usual mailing address." (CCP 415.20(b).) Defendant declares that he is currently living in Afghanistan and he does not know when, if at all, he will be able to return to the United States of America. (Zazai Decl.,...

Excerpt: ...ena For Production Of Business Records 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 bef...

Excerpt: ...propriation claims. (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 506.) Fraud. The complaint adequately pleads fraud with specificity. The core theory (it must be accepted as true on demurrer) is that defendants used Patrick Joyce as a cat's paw to defraud plaintiff. The theory is actionable and well-pled. (See, e.g., Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1095; Cmplt. 18:1-16.) Further, plaintiff's reliance on defendan...

Excerpt: ...Debtor, Or Alternatively, (II) For A Turnover Of Judgment Debtors Shares Of Stock In Semper Curious Corporation. Plaintiff's Motion (1) To Amend Judgment To Add Semper Curious Corporation ("SC") As An Additional Judgment Debtor, Or Alternatively, (2) For A Turn Over Of Judgment Debtor's Shares Of Stock In Semper Curious Corporation is granted and denied in part. The motion to add SC as a judgment debtor is denied. Reverse piercing of the corporat...

Excerpt: ...ble settlement. "A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts." (Weddington Production, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) "Terms proposed in an offer must be met exactly, precisely and unequivocally for its acceptance to result in the formation of a binding contract ... " (Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855.) Here, on March 1...

Excerpt: ...aiver grounds. In the nine months since plaintiff filed this case: defendants filed answers; after meeting and conferring, defendants filed amended answers; plaintiff deposited jury fees and demanded a jury trial; the parties filed multiple case management statements; plaintiff served document requests, interrogatories and requests for admission; plaintiff agreed to three extensions for defendants' discovery responses; the parties agreed to and f...

Excerpt: ...pects or should suspect that her injury was caused by wrongdoing." (CCP 338(d); Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110; Vera v. REL‐BC, LLC (2021) 66 Cal.App.5th 57, 68‐69.) Here, plaintiff pleads in detail that defendants caused her wrong on "multiple occasions" starting in December 2015 by failing to pay her while offering various excuses. (Cmplt. 2:12‐3:10.) This case may continue as a breach of contract action, which is wh...

Excerpt: ... & FRIENDS, INC. A CALIFORNIA CORPORATION's Omnibus Motion To Compel Defendants Michael Ina, Sherman Wong, And Lawrence Bennett To Provide Verified Responses To Discovery, Motion To Deem Facts Admitted, And Motion For Sanctions: Pro Tem Judge Steven Spaulding, 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 par...

Excerpt: ...n To Compel Defendant Catherine Bailey's Further Responses To Plaintiff's Form Interrogatories, Set One, Numbers 7.1, 7.2, 9.1 And 9.2; Request For Sanctions Against Defendant Catherine Bailey And Her Attorney Of Record, Mark Kassenbrock, In The Amount Of $1,422: Pro Tem Judge Steven Spaulding, 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 m...

Excerpt: ...and a valid reason for not presenting them earlier. (CCP 1008; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Plaintiff Renee Kwan claims "new evidence" that she opposed her arbitration agreement. However, Kwan already introduced evidence to that same effect before this court's March 28 hearing and order. In any event, Kwan opted to sign the arbitration agreement despite any misgivings. (Id. at 2:1‐2.) Kwan claims "new case law" in th...

Excerpt: ...oses. Tran and Mary Ann Baysac are the two key figures in all three cases. The latter case involves a dental‐business partnership dispute between the pair. The former cases involve a condominium Tran and her mother bought from Baysac and her husband so, Tran says, Tran could be closer to the dental businesses she worked at with Baysac. Tran further asserts that the condo sale would not have been as favorable to Baysac but for their business rel...

Excerpt: ...uld the trial judge find the need to further amend the SACC, that may be done "at any stage of the proceeding." (Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 488‐89.) Rescission. The SAAC adequately pleads a claim for rescission. The at‐issue written contract is the cross offer agreement. (SACC 4:25‐26, 10:11.) Mistakes are pled. (See, e.g., SACC 10:12‐11:6.) The parties to the contract are pled. (SACC 4:25‐26.) Filing of a rescission c...

Excerpt: ...coffee bar. Per the agreement, the settlement sum was "allocated as follows: Jason Xu ‐ 40%; Henry Yeap ‐ 30%; German Zhao ‐ 30%." Yeap and Zhao paid their allocations, but Xu did not pay his allocation. Plaintiffs' motion looks to all three defendants for Xu's 40%, arguing that the settlement sum was "joint and several." However, the settlement agreement does not contain the term "joint and several," and instead allocates each of the three...

Excerpt: ... cites no authority holding that Otis owed AAA a duty to warn that members of the public should not use the freight elevator. The undisputed facts show that while Otis installed the elevator in 1954, (1) elevator code requirements assume the presence of freight operators and handlers who are familiar with the elevator door operation; (2) the owner of the freight elevator (AAA) is responsible for determining who is authorized to use the elevator, ...

Excerpt: ...021, Order granting specially appearing defendants Harvey's Tahoe Management Company, Inc. and Harvey's Tahoe Management Company, LLC (Harveys)'s motion to quash service of summons for lack of jurisdiction. CCP sec. 916(a) provides, in pertinent part, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby . . ." The purpose of the automati...

Excerpt: ...n 683.170 "explicitly states that the 30‐day period for bringing a motion to vacate renewal of a judgment commences upon service of the notice of renewal. Defendant's actual knowledge of the judgment [does] not govern the timeliness of [her] section 683.170 motion." (Fid. Creditor Serv., Inc. v. Browne (2001) 89 Cal.App.4th 195, 204 (internal citations omitted, emphasis added).) Defendant meets her burden to prove that she was never served with...

Excerpt: ...e 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 b...

Excerpt: ...ER TECHNOLOGIES, INC., RASIER, LLC, RASIER-CA, LLC) motion for summary judgment is denied as a matter of law. Defendants owed Plaintiff a general duty of care in choosing where and how to offload the passengers. There exists a triable issue of material fact whether defendants breached that duty by dropping its passengers off in a "no stopping/tow away" zone. (Stephenson Decl., Ex. 2 - Eric Samuel Depo., 31:6-9; 245:2-17; 245:19-22; Stephenson Dec...

Excerpt: ...relief as to the following issues: 1. The Court cannot find that the manner of notice proposed (e.g., first‐ class mail only) is the best notice practicable under the circumstances. Notice shall be provided to class members both by first‐class mail and, where available, by email. Defendant shall provide all known email addresses of class members to the settlement administrator with the other information required for class notice. 2. Class mem...

Excerpt: ...emplary/punitive and treble damage claims from second amended complaint" (SAC) is denied. Comcast asserts that the SAC "pleads no facts whatsoever to support a claim for exemplary/punitive or treble damages." (Memo. 2:1‐2; see also Not. 3:6‐7.) To the contrary, the SAC's factual allegations are adequate for the pleading stage. Whether, as Comcast doubts, plaintiff will eventually be "able to succeed" on his punitive damages prayer is a questi...

Excerpt: ...on To Disqualify Attorney Micah Jacobs As Counsel For Automata Research Institute is denied. The party seeking disqualification has the burden of proof. (See Lynn v. George (2017) 15 Cal.App.5th 630, 638.) Defendants do not contend that attorney Jacobs has a conflict of interest based on prior or current representations. Rather, they contend that he cannot act for Automato Research Institute, Inc. because he was retained by persons that cannot pr...

Excerpt: ...Defendant Avande, Inc.'s motion to compel acknowledgment of satisfaction is denied. Defendant relies on Wade v. Schrader (2008)168 Cal.App.4th 1039, for the proposition that "a motion to compel acknowledgment of satisfaction of a judgment... is an entirely acceptable procedure for balancing an offsetting judgment." (Id. at 1048‐49.) However, Wade makes it clear that an entry of an offset is within the equitable discretion of this Court. (Wade, ...

Excerpt: ...ployer. (Cmplt. 3:13‐17.) Duty of Care. Common law and Civil Code 1714 impose duties of care. Cal‐OSHA regulations may establish duties in negligence actions against third parties. (Elsner v. Uveges (2004) 34 Cal.4th 915, 924.) Nibbi's role in controlling the construction site is not adjudicated at the pleading stage. Damages. The complaint adequately pleads damages against Nibbi. (See, e.g., 1:22‐24, 3:12‐4:19, 7:21‐26, 8:15‐21, 10:1...

Excerpt: ... 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 fax ...

Excerpt: ...r 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 of Civ. Proc. section 473.5.) Here, the proof of service declares that on October 28, 2019, the registered agent for service of process, Mr. Stephen Jones, was personally served with the summons and complaint. (Kerfan Decl. Exhibit 1.) Defendan...

Excerpt: ...srepresentation) and 5 (fraud) are pled with insufficient particularity. I disagree; the SAC adequately pleads "how, when, where, to whom, and by what means the representations were tendered." (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645.) Miranda's alleged representations as to insurance are adequately pled and the representations are not limited solely to insurance in any event. Agency theories are pled against Dudas. For the 9:30 a.m. Law & M...

Excerpt: ...an, 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 ...

Excerpt: ...he City and County of San Francisco that began in July 2014 and ended in June 2019; this was followed by a CBA that began in July 2019 and ends in June 2022. Both CBAs provide for grievance arbitration. In 2014, the City agreed with the union to pay $4,000 bonuses for four job classifications in which retention was problematic. (Opp. 4:9‐18.) The City says these bonuses ended in 2019 when it moved employees into new classifications. (Id. at 4:2...

Excerpt: ...ntiff's hand, injuring it. (PSO pp. 7, 12.) Defendant's motion has one ground: she owed "no duty" to plaintiff because the "primary assumption of risk doctrine" applies. (Not. 2:1‐2; Memo. 5:1‐ 3.) Under that doctrine, a person has no duty to protect others from risks of "inherently dangerous" recreational activities. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; see also Knight v. Jewett (1992) 3 Cal.4th 296, 314‐...

Excerpt: ...p.3d 1150, 1159 ["In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense."].) The court agrees that the proposed defenses are conclusory. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [answer must plead ultimate facts just like a complaint]). But instead of denying amendment, the better practice is to allow amendment and s...

Excerpt: ... collisions with two separate Uber drivers. One got out on summary judgment. The other Uber driver was allegedly in a transit lane, so had some potential liability, which he and Uber have now settled with plaintiff after negotiations by experienced counsel. Once, as here, a settlor makes a preliminary showing, a non‐settling party has the burden of demonstrating that a settlement is "so far 'out of the ballpark'" as to be inconsistent with the ...

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: ...s the sole cause of action for breach of contract is barred by the statute of limitations under Code of Civil Procedure section 337. The statute of limitations on an action for breach of contract for a written contract is four years. (Code Civ. Proc. sec. 337(a).) "It is elementary that a statute of limitations does not begin to run until the cause of action accrues." (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040.) In this ca...

Excerpt: ...ion And Stay Proceedings; Memorandum Of Points And Authorities In Support Thereof; Declaration Oren Dagan Defendants S O D Home Group, Inc. and Oren Dagan's motion to compel arbitration and stay is denied. "[T]he party moving to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate." (Hotels Nevada v. L.A. Pac. Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; see also Rosenthal v. Great Western Fin. Securi...

Excerpt: ...) \ (1 of 2) AKRO Real Estate Partners LLC's ("AKRO") motion for leave to intervene is granted. "The purpose of intervention is to promote fairness by involving all parties potentially affected by a judgment in the litigation." (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1199.) Moreover, the Court liberally construes CCP sec. 387 in favor of intervention. (Id. at 1200 ["And section 387 should be liberally construed in ...

Excerpt: ...e have now produced more than 76,000 pages of documents and extensive privilege logs. In a stipulation and order, the parties and this court agreed that the latter would address two remaining disclosure issues. Those two limited issues involved documents withheld by the department's civil rights enforcement section (CRES) regarding (1) Bakersfield police and (2) juveniles. (1/10/22 Stip. & Order 2:15‐ 3:12; Pltf. Memo. 6:25‐7:10.) As to the f...

Excerpt: ...ty has the burden of demonstrating that a settlement is "so far 'out of the ballpark'" as to be inconsistent with the law's equitable objectives. (Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499‐500.) Experienced counsel for Sam's and plaintiffs negotiated a $300,000 settlement. No evidence suggests collusion, fraud or tortious conduct. (Id.) A co‐defendant argues that plaintiffs once demanded $34 million in damag...

Excerpt: ...rough three (wrongful termination/retaliation). To establish a prima facie case of retaliation, plaintiff must show (1) he engaged in a protected activity, (2) defendant subjected him to an adverse employment action, and (3) a causal link between the two. (See St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.) It is well settled that "[t]he pleadings delimit the scope of the issues on a summary judgment motion. [cite] A party may not op...

Excerpt: ...d of Trustees of the California State University's ("CSU") motion for summary judgment is granted. The Court finds all of Plaintiff's causes of action to be time‐ barred. Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing ("DFEH") on August 2, 2017 and DFEH issued a right‐to‐sue notice the same day. (Herrera Decl., Ex. B.) California Government Code section 12965 requires employees to file a civil...

Excerpt: ...ff Jane Doe entered into the "Arbitration/Mediation Agreement," as part of Defendants' new hire paperwork. (Montano Decl. 7, Exh. 1.) The Agreement provides in relevant part, "disputes that may arise in connection of the undersigned ("Employee") with Na Hoky, Inc. its predecessors, successors, affiliates, parents, subsidiaries, divisions, related companies, current and former directors, officers, representatives, and employees (collectively calle...

Excerpt: ... not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; Litt v. Eisenhower Medical Center (2015) 237 Cal. App. 4th 1217, 1224 [when the cost item appears proper on its face, the burden is on the objecting party to show the costs to be unnecessary or unreasonab...

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: ...did not enter into an attorney-client relationship with Defendants with respect to the escrow account." (February 8, 2022 Order Sustaining Defendants' Demurrer to Plaintiffs First Amended Complaint in Part with Leave to Amend.) In any case, even if the Court were to assume the existence of an attorney-client relationship, Plaintiff fails to state facts sufficient to constitute her remaining causes of action for breach of fiduciary duty and breach...

Excerpt: ...AND, THOITS LAW) motion to compel arbitration and stay are granted. "Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.'" (Theresa D. v. MBK Senior Living LLC (2021) 73 Cal.App.5th 18, 24.) Here, defendants demonstrate that Ms. Kwan executed the arbitration agreement. (Holland Decl., pars. 3‐4, 7‐8.) Ms. Kwan ...

Excerpt: ... he was not a party to the contract and did not employ Plaintiff. However, Plaintiff has cured the defects in his second amended complaint by alleging facts regarding Young's liability under the alter ego doctrine. Plaintiff now alleges: there is a unity of interest between the entity defendants and Young; Young intended to use the corporate entities as a shield against personal liability; Young dominated the entity defendants; Young and the enti...

Excerpt: ...ys Corrected First Amended Verified Complaint. Defendant's Motion to Strike as to the claim for prejudgment interest is denied. Defendant moves to strike Prayer for Relief, paragraph 2 in its entirety: "an award of interest accrued as of the date of the judgment at the rate of three percent (3%) per month; ". (CFAVC, Prayer for Relief 2.) "The test for determining certainty under section 3287(a) is whether the defendant knew the amount of damages...

Excerpt: ...owever, a motion for summary judgment must be directed to the entire action. (CCP 437c(a); Edmon and Karnow, California Practice Guide: Civil Procedure Before Trial (TRG 2016) 10:1.) On March 4, 2022 (the day plaintiff's opposition is dated), Garda filed a "notice of errata," which is actually a putative amendment. This "notice" is rejected for three reasons. First, Garda did not seek leave to file it. Second, plaintiff did not have a full and fa...

Excerpt: ...ned with leave to amend. WNC's demurrer is sustained with leave to amend as to Bryant Street's third cause of action for "breach of contractual duty to properly investigate a claim" and fourth cause of action for "breach of contractual duty to pay a covered insurance claim." Bryant Street is granted leave to allege the existence of a valid contract between the parties. The cross-complaint incorporates 352 pages of insurance policies (see Exhibit ...

Excerpt: ...nd For Sanctions. Pro Tem Judge Aaron Minnis, 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...

Excerpt: ...ads solely a representative PAGA action. (Second Amended Complaint, par. 13.) Plaintiff does not allege any individual claims. The waiver of representative PAGA claims in an arbitration provision‐ claims that are on behalf of the State of California‐is unenforceable and the Court of Appeal has held that the U.S. Supreme Court has yet to abrogate that rule. (See Winns v. Postmates Inc. (2021) 66 Cal.App.5th 803; Iskanian v. CLS Transportation ...