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