Excerpt: ...e, to whom, and by what means the representations were tendered." (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) After that is pled, the court may be able to reach the parties' arguments. Demurrer sustained with leave to amend. 2: Negligent Misrepresentation. The same alleged representations are at issue here (Cmplt. 7:6-11), so the ruling is the same - demurrer sustained with leave to amend. 3: Breach of Contract. Unlike fraud, this claim...

Excerpt: ..."with adequate information and instructions to exercise his option rights." (ld. at 5:8-10.) Defendant's arguments to the contrary rely on its spin of documents of which it seeks judicial notice. However, defendant "disputes the authenticity and applicability of the unsworn documents" (Opp. 1:28.) and their contents are not subject to judicial notice in any event. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-15 [...

Excerpt: ...nes (collectively Restaurant) judgment on the pleadings as to the first amended complaint (FAC) is denied in part and granted in part. Richard Cibotti adequately pleads slander and false light against the Restaurant. The FAC alleges, inter alia, that Restaurant employees falsely "orally identif[ied]" Richard as the man who made "threats to kill a family and their young children" at the Restaurant. (ld. at 5:3-24.) Contrary to the Restaurant's arg...

Excerpt: ... profits from the unauthorized rental of his home by third parties also named in this action. Plaintiff first asserts a claim for conversion, alleging that Defendant failed to comply with an Eastern Caribbean Supreme Court order to the place the rental income of his home into an interest bearing account and that it acted as an agent of the other defendants to wrongfully exercise control of Plaintiff's property. (4AC, 6:27-28, 7:1; Ex. A). Plainti...

Excerpt: ...her based on her sex. FAC 6. Payrovi alleges that the most recent act of discrimination occurred "at some date after April 26, 2018" when Dolby closed fts investigation of her complaint and refused to hire her into a permanent position. ld. at 15. Payrovi filed a pre-form inquiry with the DFEH on March 14, 2019, and her verified complaint on March 17, 2020 ld. at 37, 41. Dolby argues that the FAC is barred by the one-year statute of limitations o...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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, ...