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: ...shows that the action may not be pursued. (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-7.) It acts as a mechanism that tests the sufficiency of a complaint as a matter of law. (Weimer v. Nationstar Mortgage, LLC (2020) 47 Cal.App.5th 341, 352.) "In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view of substantial justice between the parties." (See Code Civ. ...

Excerpt: ...ith and Shawn Evans filed this action alleging that they are entitled to recover on two promissory notes. Defendant cites a Delaware judgment in Avande, Inc. v. Shawn Evans, et al., CA No. 2018-0203-AGB (Delaware Court of Chancery) and argues that res judicata (claim preclusion) and/or collateral estoppel (issue preclusion) bar the instant action. Delaware law governs the preclusive effect of the Delaware judgment. "Under California law, both the...

Excerpt: ... unconscionable carve-out provision. (Civil Code, Sec. 1670.5, subd. (a); Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 121 [a court has some discretion whether to sever an unconscionable provision or refuse to enforce the entire arbitration agreement]; see Carlson v. Home team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 639].) With the misappropriation carve-out provision now severed, the parties' arbitration a...

Excerpt: ... supported by the strong policy favoring liberal amendment of pleadings. The amendment is warranted, among other grounds, to allow plaintiff to add factual allegations regarding events occurring after the original complaint was filed. Defendants do not show that they would be prejudiced by the amendment: the trial date is not until February 7, 2022, discovery has not yet commenced, and no dispositive motions have been filed. To the extent that de...

Excerpt: ...ro 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 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 t...

Excerpt: ...ny'S Motion For Summary Judgment Or In The Alternative,Summary Adjudication. (Part 2 of 3 tentative ruling) Summary adjudication is denied as to plaintiff's intentional infliction of emotional distress claim. To establish IIED, the insured must plead and prove acts by insurer, directed at the plaintiff, "so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Schlauch v. Hartford Accident & Indemnity Co. (1983) 14...

Excerpt: ...l Motors Corporation v. Superior Court (1996) 48 Cal.App.4th 580.) "The lack of knowledge of the true name of a defendant, however, must be 'real and not feigned.' [Citation.] A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. 'Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant.'" (Dover v Sadowinski (1983) 147 Cal.App.3d 113, 116.) ...

Excerpt: ...ember 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 authori...

Excerpt: ...entirely sustained with 20 days leave to amend. The first and second causes of action are sustained because the FAC fails to plead a violation of Penal Code section 550. An action under Insurance Code section 1871.7 may be brought on behalf of the State against "every person" who violates Penal Code sections 549 and 550. Those statutes, in turn, criminalize the making of false or fraudulent claims to insurers. Section 1871.7 is limited to present...

Excerpt: ... facts sufficient to support a claim for punitive damages. (See, e.g., FAC 2:20‐9:6, 11:20‐12:7.) If proven, the factual allegations could show despicable conduct and thus malice and/or oppression at a minimum. (Civil Code 3294.) The notice of motion's second ground is that swaths of the FAC are "irrelevant, false or improper" and not "in conformity with the laws of this state." This is so lacking in specificity that the motion must be denied...

Excerpt: ...es substitute process was proper pursuant to C.C.P. section 415.20. However, when serving a corporate entity, the papers must be delivered to a person who is apparently in charge of such office, such as the personal secretary of the person to be served, and such delivery must be made during the usual office hours. (Code Civ. Proc., section 415.20, subd. (a).) It is undisputed that the service of summons and related papers were served on attorney ...

Excerpt: ...use is overruled. Financial elder abuse is the taking of property of an elder with "a wrongful use or with intent to defraud, or both." (Cal. Welf. & Inst. Code sec. 15610.30(a)(1).) "Wrongful use" is the taking of property where one "knew or should have known that this conduct is likely to be harmful to the elder." (Id. sec. 15610.30(b).) Here, plaintiff sufficiently alleges that defendants knew or should have known that the investment advice an...

Excerpt: ...comes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest." (California Rules of Court, rule 2.550(d).) Swoop Search submits the declaration of Paul Bottum, CEO. Bottu...

Excerpt: ...el Further Compliance And Responses To Form Interrogatories General (Set One) And Form Interrogatories Employment (Set One) To Defendant Dhr International, Inc. And For Sanctions And $7,415 In Attorneys Fees. (Part 2 Of 2 Of Tentative Ruling) 207.1 Granted with the understanding that the complaints are those currently set forth in the current complaint. 207.3 Denied. Defendants have answered that no complaints were made until after Plaintiff resi...

Excerpt: ...attorney's fees, petitioner Mize never sought that relief, and that issue was never briefed. (Mezias Decl., Ex. B pg. 10; Ex D pgs. 19- 20.) Petitioner even admits the windfall nature of this relief. (Mize's points and authorities, pg. 10, fn. 1.) The arbitrator explained that he "inadvertently added" the interest to the fee award and the court can correct that evident miscalculation. (Murphy Decl., Ex. D pg. 2.) The court is aware that a mistake...

Excerpt: ...ng) Summary adjudication is denied as to the third cause of action (disability discrimination) because triable issues of fact exist. "[T]he parties' disputes in disability cases focus on whether the employee was able to perform essential job functions, whether there were reasonable accommodations that would have allowed the employee to perform those functions, and whether a reasonable accommodation would have imposed an undue hardship on the empl...

Excerpt: ...ce. USF's motion asserts that "Papaneau cannot establish breach of duty or causation because she admits that she did not observe an unsafe condition on the step where she slipped." However, USF concedes "summary judgment does not commonly lend itself to resolving a negligence case" and that is so here. Papaneau demonstrates triable issues of material fact with her testimony that steps below the one she fell on were wet, coupled with a meteorologi...

Excerpt: ...r circumstances and the Court finds those decisions persuasive. (See, e. g., Pappy's Barber Shops, Inc. v. Farmers Group, Inc. (S.D. Cal. 2020) 491 F.Supp.3d 738, 740 [presence of COVID-19 virus at premises does not constitute direct physical loss]; Mudpie, Inc. v. Travelers Casualty Insurance Company of America (N.D. Cal. 2020) 487 F.Supp.3d 834, 838-840 [retailer's inability to operate because of COVID-19 pandemic did not constitute "direct phy...

Excerpt: ...t is denied in full. Defendant argues this case does not belong in court because plaintiff cannot establish an actual, qualifying FEHA disability which causes the first, second, third, and fourth causes of action to fail. However, the court finds that plaintiff does establish a "physical disability, mental disability, or medical condition" pursuant to the statutory definition. (Gov. Code, section 12920.) The physiological condition or impairment ...

Excerpt: ...his 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 sign given by email. If not all...

Excerpt: ...ith leave to amend and Defendants' request for judicial notice is granted. Defendants' request for judicial notice of Exs. A‐ F, and H are all incorporated by reference in the First Amended Complaint ("FAC") and are thus judicially noticeable. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) Exs. G, I, J are official deeds and records and thus judicial notice may be taken under Evid. Code Section 452(c).) Defendants' demurrer on the basi...

Excerpt: ...h her vehicle. Moss sued for motor vehicle and general negligence. Mesman's motion argues that she breached no duty to Moss, because she "acted as a reasonably prudent driver would have." However, disputes of material fact exist around at least two issues. First, Mesman has repeatedly admitted she was driving 70‐71 mph in a 65‐mph zone. (PSS 2‐4, 17, 20.) Second, Moss asserts this was too fast for the nighttime conditions. (CACI 706.) Mesma...

Excerpt: ...Real Estate, Inc.'s summary judgment motion is denied. Plaintiffs are buyers of a house. They plead that a large picture window leaks and an upstairs bathroom is not code‐compliant. Leung was the house's listing agent; she works for Sequoia. Leung and Sequoia are charged with "intentional non‐disclosure of a material fact/fraudulent concealment" and negligent misrepresentation. Leung asserts that her role was "merely as real estate agent and ...

Excerpt: ...4:18-23, 6:3-26, 7:12-20.) Factual disputes are raised that are not resolvable by demurrer. (Memo. 4:13-20, 6:3-5.) Defendant cites no authority for his notion that "forms" of entity and receipt need be pled. (Id. at 4:21-24.) Hasso v. Hapke (2014) 227 Cal.App.4th 107 does not hold that defendant was free to fraudulently transfer assets because plaintiff had a lien on them; rather, Hasso involved defendants' valid liens. 2 (conspiracy to commit f...

Excerpt: ...ication Of Issues As To Defendant And Cross Complainant Hensel Phelps Construction Co.'s Cross-Complaint Against Cross Defendant Deharo-Ramirez Corp. Cross-complainant Hensel Phelps Construction Co.'s ("Hensel") motion for summary judgment on its cross-complaint against DeHaro Ramirez Group ("DeHaro") is denied. Hensel's motion for summary adjudication on its breach of contract cause of action is denied. Hensel failed to maintain its initial burd...

Excerpt: ... first element of a promissory estoppel claim, a promise clear and unambiguous in its terms, has not been established. (See Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734.) A promise is an indispensable element of the doctrine of promissory estoppel. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416.) Cases are uniform that the doctrine cannot be invoked and must be held inapplicable in ...

Excerpt: ...riters, Inc.'s "application for good faith determination (CCP 877.6(a)(2))" is granted. Northfield and Bass's settlement with plaintiffs is within "the ballpark" of Tech‐Bilt, Inc. v. Woodward‐Clyde Assocs. (1985) 38 Cal.3d 488. This case involves underinsurance revealed after a fire. Applicants and plaintiffs attribute this predominately to defendant Calender‐Robinson Co., Inc.'s reports of inaccurate building square footages, and thus hav...

Excerpt: ...on had served numerous discovery requests and subpoenas, and had filed numerous motions, the Court appointed a judge pro tem to hold an informal discovery conference, which was held on March 2. Following that conference, the judge pro tem issued a lengthy report and accompanying proposed stipulation and order, which plaintiff refused to enter into. The Court hereby adopts the provisions of the recommended stipulation as its order, as follows: 1. ...

Excerpt: ...wful Practice of Law. By order filed April 29, 2020, this Court granted the State Bar's application for a permanent order assuming jurisdiction over Respondent's unauthorized law practice. In that order, the Court found among other things that although Respondent has never been an active member of the California State Bar and has never been otherwise authorized pursuant to statute or court rule to practice law in California, she nevertheless was ...

Excerpt: ...is the existence of an actual, present controversy over a proper subject. (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 181; Osseous Technology of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 367 ["There is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs"].) A trial co...

Excerpt: ...de of Civil Procedure section 484.090 provides that the court "shall issue" a right to attach order to the plaintiff where the following elements are established: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the applicant has established "the probable validity" of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim ...

Excerpt: ... of entry of Tentative Ruling.) Pro Tem Judge Robert Kane, 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 ...

Excerpt: ... rented scooter, he ran over a "drop off" and into "thousands of asphalt pebbles and pellets," fell and was severely injured. Plaintiff sued the City and County of San Francisco, its contractor Ghilotti Bros., Inc. and Skinny Labs for general negligence, the former two co‐defendants for premises liability and the latter for products liability. Skinny Labs cites an arbitration clause in its online rental agreement, but neither the City nor Ghilo...

Excerpt: ...ned with leave to amend. 4 (concealment). Less specificity is required in the context of negative fraud or "when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy . . . ." (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) This demurrer is overruled. 7‐10 (assault, sexual battery, intention...

Excerpt: ...orth 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 telephone, the sti...

Excerpt: ...tion under Code of Civil Procedure section 437c(p)(2). Defendant argues that it is entitled to summary judgment because it did not employ the forklift operator and therefore cannot be held vicariously liable under the doctrine of respondeat superior. Liberally reading the Second Amended Complaint per Code of Civil Procedure section 452, however, the pleading also raises issues of premises liability and negligent entrustment. (See, e.g., par. 17 [...

Excerpt: ...a breach of contract claim, plaintiff must allege: (1) the existence of a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damage to plaintiff therefrom. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI 303.) Here, the face of the amended complaint shows that co‐defendants (the News) entered into the adduced agreement with plaintiff and there are no facts showing how East We...

Excerpt: ...o another proper county when "the convenience of witnesses and the ends of justice would be promoted by the change." The burden is on the party seeking a change of venue to prove that both the convenience of witnesses and the ends of justice would be promoted by the change. (Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 477.) In this action, Plaintiff alleges that she suffered discrimination, harassment, and retaliation, amo...

Excerpt: ... 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 telephone, the stipulation ma...

Excerpt: ...disbursed to defendant Montiel forthwith. The parties entered into an accord and satisfaction when plaintiff's counsel stated: "I see no reason to be arguing with you so we have decided to reduce our clients' demand into the above‐ referenced escrow to $539,220.07" and then that sum was remitted to plaintiff. (Smurro Decl., Ex. F.) Thus, the underlying 2013 judgment was fully satisfied in June 2016, when escrow closed. (Code Civ. Proc. sec. 724...

Excerpt: ...Tem Judge Noah Lebowitz, 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 ...

Excerpt: ...MPANY A/S/O ANG LI's Motion To Compel Further Responses To Form Interrogatories, Special Interrogatories, Request For Admissions And Request For Production Of Documents, And Request For Sanctions: Pro Tem Judge Katherine Gallo, 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 ...

Excerpt: ...laintiffs did not meet their burden to show they are entitled to disgorgement of the full $411,892.96 paid to O'Reilly. "The "term 'compensation' as used in [Business & Professions Code 7031(b)] denotes sums claimed as an agreed price, fee or percentage earned by performance, and also sums claimed as the reasonable value of work done under implied contract." (Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 32.) It remains disputed what part of the...

Excerpt: ...terrogatories: 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 w...

Excerpt: ...Court granted a default judgment in favor of plaintiff in the amount of $4,609.13. Plaintiff now seeks to set aside that judgment under Section 473(b) of the Code of Civil Procedure, contending that it inadvertently failed to appear at the prove up hearing set for January 9, 2020, but did appear the next day and found out that the case had been dismissed due to its failure to appear. However, no such scheduled hearing or dismissal appears on the ...

Excerpt: ...lternative motion to strike punitive damages from the FACC is denied. Punitive damages may be awarded against an escrow agent for violating escrow instructions or concealing information from a party to the escrow, which are among the allegations D 27 brings against Old Republic Title here. (Virtanen v. O'Connell (2006) 140 Cal.App.4th 688, 714-715; Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289, 303.) Old Republic Title's alternative...

Excerpt: ...em Aaron Minnis at 1:30 p.m. The Pro Tem Judge has emailed a Zoom invitation directly to the parties for the hearing. Judge Pro Tem Aaron Minnis has issued the following tentative ruling: Granted, in part. The motion is timely because it was electronically served on March 31, 2021, the last date per the parties' stipulation. See Young Decl Para. 13:15‐18. The motion is granted as to requests for production relating to the parties' jointly‐tit...

Excerpt: ...e several issues regarding the character of plaintiff's shares in defendant Imperfect. The Court rules as follows: 1. Whether Plaintiff's "Unvested" Shares of restricted stock of Imperfect Foods constitute wages under California law. The Court grants summary adjudication in favor of defendants on issue 1 2. Whether the Forfeiture provision set forth in Section 2(a) of the Restricted Stock Agreement entered into between Plaintiff and Imperfect Foo...

Excerpt: ...��complaint without leave to amend, but with permission to refile those claims in the family law case between Ms. Zolfaghari and Mr. Ostrin [In re Marriage of Jerry Ostrin and Kathia Zolfaghari, Case No. FDI‐15‐784382], and stayed all causes of action in the cross‐complaint alleged against Mr. Ostrin pending the conclusion of the family law case. The order provided that if any of the causes of action of the cross‐complaint have not been f...

Excerpt: ... overall, not to a party who prevailed only at an interim procedural step." (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 977; accord, City of West Hollywood v. Khiagi (2017) 16 Cal.App.5th 739, 753.) In DisputeSuite.com, the California Supreme Court discussed with approval several cases in which "a party has won a procedural victory, ending the contract litigation in one court but the litigation has continued or could continue in ...

Excerpt: ...ria are met. [citation] This burden must be met by competent evidence in affidavits and authenticated documentary evidence." (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232‐1233; see also BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428‐429 ["The plaintiff must do more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating com...

Excerpt: ...fter slipping and falling on water at an apartment building. Defendant Charybdis, LLC leases the property to defendant Columbus Residence LLC, which contracted with JB for cleaning services. The contract calls for JB to indemnify Columbus for JB's negligence, but no party filed a cross‐claim. JB moved for summary judgment on plaintiff's complaint. Plaintiff filed a non‐opposition; she says facts learned in discovery make her claim against JB ...

Excerpt: ...crimination (count 6). Plaintiff's opposition does not mention ‐ and thus abandons ‐ count 6, so summary adjudication is granted on it. In count 1, the complaint alleges: "Defendant retaliated against Plaintiff for his reports about suspected money laundering involving an elderly patron " "It is to the allegations in the complaint to which the summary judgment motion must respond." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 12...

Excerpt: ...KN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 [noting preference for use of the phrase "claim preclusion" over "res judicata"].) First, Walsh fails to demonstrate that the New York action involved the "same transaction or series of transactions" for purposes of claim preclusion. (Silberstein, Awad & Miklos, P.C. v. Spencer, Maston & McCarthy, LLP (841 N.Y.S. 2d 623, 624.) Walsh cites no law that allows a New York court to adjudicate torts...

Excerpt: ...nt motion is denied in its entirety. Summary adjudication is denied as to plaintiff's first cause of action for retaliation. Triable issues of fact exist as to whether plaintiff's complaint to human resources constitutes "protected activity" under Labor Code section 1102.5(b). Defendant argues plaintiff did not engage in protected activity under the Whistleblower Statute because plaintiff's report concerned "internal personnel matters" only. (See...

Excerpt: ... in an action ... resides out of the state, ... the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action ....[the] motion shall be made on the grounds that the plaintiff resides out of the state ... and that there is a reasonable possibility that the moving defendant will obtain judgment in the a...

Excerpt: ...es To Request For Production Of Documents, Set One; Request For Entry Of $10,000 In Monetary Sanctions Against Defendant And Cross-Claimant Legalmatch.Com: The report and recommendation of the judge pro tem is adopted. Plaintiff's motion to compel further responses to request for production of documents is granted. Plaintiff's request for sanctions against LegalMatch.com is granted in the amount of $10,000. The Court adds that independent of the ...

Excerpt: ...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 Court Judge. If a party app...

Excerpt: ...ck Of Good Faith And Reasonable Cause In Bringing Proceeding Under Tort Claims Under CCP 1038 And An Award Of Post CCP 998 Costs: The Court found in its April 27, 2021 order that Cross‐Defendant City of South San Francisco is entitled to recover its attorney's fees and other costs incurred in defending Defendants and Cross‐Complainants Luen Shee Shek and Shek Construction's cross‐complaint from August 24, 2018 to the present. Under Code of ...

Excerpt: ... is filed "with the purpose of enforcing plaintiff's judgment" as to case number CGC-10-500534. (FAC para. 25.) However, in that case, this court granted the City's judgment on the pleadings, dismissed the case with prejudice and entered judgment in favor of the City. The Court of Appeal affirmed this court's judgment. Contrary to plaintiff's apparent misimpression, no judgment was ever entered in her favor. There can be only one final judgment i...

Excerpt: ...s "internet‐oriented services and infrastructure to residents and/or commercial entities" in San Francisco, and that it has negligently maintained its CATV internet cabling boxes by failing to ensure that their covers are fastened, such that vehicles driving over those boxes generate "gunshot‐like" noise that disturbs plaintiff. (FAC paras. 6‐8.) Plaintiff asserts that his complaints to the City's Department of Public Works have gone unansw...

Excerpt: ...lemental opposition," nor her declarations, which improperly rely upon matters outside the pleadings. It is unclear what allegations Defendant Houston is being asked to respond to or what claims are asserted against her. The only allegations referring to her in the lengthy second amended complaint that the Court has been able to locate that have any factual content at all appear on pp. 13 and 26, where plaintiff alleges that on March 6, 2020, Hou...

Excerpt: ...t 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 telephone, the ...

Excerpt: ...t is denied without prejudice to plaintiff refiling the motion on the basis of a proper showing. Although plaintiff's supplemental filings provide marginally more information than their initial moving papers, they remain singularly uninformative as to the relevant factors under Kullar. Thus, counsel's declaration refers to "analysis of that data sampling and rates of non‐compliance gathered from the sampling," but without explaining what data w...

Excerpt: ...rt of order to show cause re preliminary injunction is denied. Frith has withdrawn the motion in part as to certain assertedly confidential commercial business information contained Exhibits O through Q. As to the balance, the Court cannot find that the factors set forth in Rule 2.550(d) are satisfied. The motion is supported solely by a brief conclusory declaration of counsel lacking personal knowledge, which is insufficient to meet Frith's burd...

Excerpt: ...ts 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 telephone,...

Excerpt: .... This motion to quash originally came on for hearing on February 16, 2021. On March 3, 2021, the Court issued an order explaining that plaintiff had not met his burden of demonstrating sufficient minimum contacts for general or specific jurisdiction. (See Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232‐1233; BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428‐429 ["The plaintiff must do more than...

Excerpt: ...ll 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 appe...

Excerpt: ...ntative Ruling). 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: ...anctions. 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 who wil...

Excerpt: ...ersonal jurisdiction, the plaintiff must prove, by a preponderance of the evidence, the factual basis justifying the exercise of jurisdiction . . . The plaintiff must do more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts." (BBA Aviation v. Sup. Ct. (2010) 190 Cal.App.4th 421, 428‐29.) Plaintiff fails to show that Defendant is ...

Excerpt: ...l burden of production. (See CCP 437c(p)(2).) Plaintiff's eleventh cause of action alleges that SFUSD was negligent in its "hiring, training and retention" of teachers Tobar and Bianchi. (Fifth Amended Complaint, par. 82 (emphasis added).) SFUSD's moving papers make no argument regarding the training claim and SFUSD presents no evidence regarding its training protocol. Therefore, SFUSD does not cite authority or proffer evidence to show that the ...

Excerpt: ...asserted that fees should be reduced because the case was "not complex" and the record not "voluminous." This was due in large part to the judicious way in which Maventus counsel defensed plaintiff's case. A total of $73,125 for a year‐plus of litigation capped by a case dispositive summary judgment motion is reasonable. Second, plaintiff complains that counsel worked "over 60 hours" on their summary judgment motion. Again, based on my 35 years...

Excerpt: ... amend. 5-6, 8 (assault, battery, intentional infliction of emotional distress). Defendants' demurrer ignores the complaint's allegations that "Uber is a common carrier" and thus liable for assaults "regardless of whether such acts were committed within the course and scope of employment for Uber." (Cmpl., 19:8-17.) Defendants argue that "Uber cannot be held vicariously liable for Doe One's acts, even if he were an employee or agent (which he is ...

Excerpt: ... 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 by...

Excerpt: ... Compel Further Responses By Defendant City And County Of San Francisco To Requests For Admission, Set One, Form Interrogatories, Set One, And Requests For Production Of Documents, Set One, And To Compel Production Of Documents. Pro Tem Judge Tom Cohen, 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...

Excerpt: ...he allegations of the amended complaint show that plaintiff knew she was entering into a loan with the defendants and was fraudulently induced to do so based on defendants' alleged misrepresentations. (See, e.g., Amended Complaint, pars. 3‐4.) Plaintiff pleads a classic fraud in the inducement claim and there are no facts to support a fraud in the execution claim. In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415, t...

Excerpt: ...se of discretion." In fact, I granted a continuance. After parting ways with her lawyer in mid‐November 2020, Holden blew the deadline for opposing the summary judgment motion. I nonetheless continued the summary judgment hearing a month and allowed Holden a late opposition, which she filed. Second, Holden claims "newly discovered evidence" ‐ a purchase agreement. But Holden concedes she and her counsel possessed this document all along. Thir...

Excerpt: ...dering respondents to repeal Resolution No. 211‐12A1, relating to the renaming of San Francisco Unified School District schools, as well as related declaratory and injunctive relief, on the grounds that in enacting that Resolution at its January 26, 2021 meeting, respondent Board of Education violated the Brown Act. On April 6, 2021, after suspending the work of the panel it had previously appointed to advise it regarding the renaming process, ...

Excerpt: ...2019, this Court granted defendants' petition to compel arbitration of this professional negligence action and stayed the litigation. The matter was referred for arbitration to the Hon. James Lambden (Ret.) at ADR Services, Inc. Since that time, the parties have held a number of prehearing conferences, conducted discovery, and the arbitrator has issued a number of written rulings. Before the instant motion arose, the final arbitration hearing was...

Excerpt: ...motion. InstQuest is a corporation that has been unrepresented by counsel since October 28, 2020, after this case was remanded to this court after InstQuest refused to post arbitration fees necessary to allow the arbitration previously ordered by the court to proceed. Since that remand, InstQuest has failed to appear for a noticed deposition, and has ignored communications from Plaintiffs' counsel. The Court will strike Defendant's answer to the ...

Excerpt: ...n is also an omission of a legal duty." (Erlich v. Menezes (1999) 21 Cal.4th 543, 551, 554.) "While Erlich states that a claimant is required to plead a tort duty independent of the contract, Erlich does not address whether improper performance of a professional services contract gives rise to an independent tort duty. . . . Cases decided subsequent to . . . Erlich continue to apply a rule that negligent failure to exercise reasonable care and sk...

Excerpt: .... County of Placer (2019) 41 Cal.App.5th 537, 551 [elements of a conversion claim].) Normally, money cannot be converted, unless a specific sum capable of identification is involved. Such cases typically involve defendants who have misappropriated, commingled, or misapplied specific funds for the benefit of others (e.g., an agent who receives money on behalf of his or her principal, then refuses to account for it on demand). (See PCO, Inc. v. Chr...

Excerpt: ...t For Admissions, Set One, Form Interrogatories (17.1), Set One, Special Interrogatories, Set One, And Request For Production, Set One Responses From Defendant Jack Stephenson And For Sanctions. Pro Tem Judge Robert Kane, 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 sig...

Excerpt: ... is denied without prejudice to Plaintiff filing a supplemental submission. Plaintiff has not presented sufficient information to enable the Court to evaluate the reasonableness of the proposed settlement. In order to determine whether a proposed class action settlement is fair and reasonable, a trial court "should consider relevant factors, such as the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further lit...

Excerpt: ...challenges the Coastal Commission's March 11, 2020 approval of a permit for the PureWater Soquel Project, a water recycling and groundwater replenishment project, including development of a new tertiary water treatment facility in the City of Santa Cruz. The petition was filed on June 11, 2020. After extensively meeting and conferring over a period of months with petitioner, who repeatedly requested respondent to delay filing a demurrer and state...

Excerpt: ...isrepresentation and the second cause of action for false promise. The court in Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795 held that in pleading false promise claims, it "is insufficient to show an unkept but honest promise, or mere subsequent failure of performance." (Id. at 804 [citing Riverisland Cold Storage, Inc. v. Fresno‐Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183.].) Rather, "something more than n...

Excerpt: ...ive Order As To Confidential Information: Pro Tem Judge Robert Kane, 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 b...

Excerpt: ... Court entered an order denying Defendant's prior motion to set aside the same default, which was brought on the very same grounds. The instant motion fails even to mention that prior order, in direct violation of Code of Civil Procedure section 1008(b). That statute provides, "A party who originally made an application for an order which was refused in whole or in part, . . . , may make a subsequent application for the same order upon new or dif...

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: ...on 1281.5. Plaintiff's motion to stay action pending arbitration is denied without prejudice. Under Code of Civil Procedure section 1281.5(b), a claimant may "file and serve a motion and notice of motion pursuant to Section 1281.4 to stay the action pending the arbitration of any issue, question, or dispute that is claimed to be arbitrable under the agreement and that is relevant to the action to enforce the claim of lien." Section 1281.4 allows ...

Excerpt: ...ment, intentional infliction of emotional distress). Defendants' demurrer ignores the complaint's allegations that "Uber is a common carrier" and thus liable for assaults "regardless of whether such acts were committed within the course and scope of employment for Uber." (Cmpl., 17:17‐25.) Defendants argue that "Uber cannot be held vicariously liable for Doe One's acts, even if he were an employee or agent (which he is not), since he acted on p...

Excerpt: ...the required specificity ‐ "how, when, where, to whom and by what means." (Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645.) This demurrer is sustained with leave to amend. 4‐6 (assault, battery, intentional infliction of emotional distress). Defendants' demurrer ignores the complaint's allegations that "Uber a common carrier" is liable for intentional torts "whether or not such acts were committed within the course and scope of employment." (Cm...

Excerpt: ...roceedings Against WOJV. Cross-Defendant Webcor-Obayashi Joint Venture's motion to sever the cross-complaint and stay proceedings against Webcor-Obayashi Joint Venture is denied. Severance of the cross-complaint, by which LPC West, Inc. and LPC West Transit Management, LOLC seek equitable indemnity, contribution, and declaratory relief, would disserve judicial economy. (See Colusa Air Pollution Control Dist. v. Superior Court (1991) 226 Cal.App.3...

Excerpt: ...adjudication is denied as moot as to issues two through seven and ten. The rulings on LR's cross-motion for summary adjudication resolve these issues against Spectrum. The motion is also moot as to issues eight and nine (defenses) given that the Court has determined that the cross-complaint substantively lacks merit. To the extent the defenses are still live, the Court would grant summary adjudication against LR as it does not address those issue...

Excerpt: ...adjudication is denied as moot as to issues two through seven and ten. The rulings on LR's cross-motion for summary adjudication resolve these issues against Spectrum. The motion is also moot as to issues eight and nine (defenses) given that the Court has determined that the cross-complaint substantively lacks merit. To the extent the defenses are still live, the Court would grant summary adjudication against LR as it does not address those issue...

Excerpt: ... Boswell Jin Zheng dba Apex Construction's ("Apex") opposition to Hirer's motion. Apex lacks standing to file an opposition to this motion. Hirer's notice of motion is seeking relief solely against plaintiff's amended complaint and not against any other pleading. The summary judgment statute is stated in the singular and allows an "opposition" to be filed, not oppositions. (See, e.g., CCP sec. 437c(b)(2)-(4).) Permitting co-defendant oppositions ...

Excerpt: ...Evidence In Defendant Motion To Compel Arbitration: Plaintiff's motion to strike is denied. The Court views this "motion" as a simple objection to defendant's evidence. Therefore, the Court rejects defendant's arguments that plaintiff failed to comply with Code of Civil Procedure sections 435.5 and 1005. Defendant sufficiently establishes that the adduced records are properly authenticated and admissible under the business records exception to th...

Excerpt: ...Amendment Or, In The Alternative, Correction: Petitioners' petition to confirm arbitration award is denied without prejudice. The Court remands this matter back to the arbitrator to consider the rate of prejudgment interest and the date upon which prejudgment interest should commence. (See DiMarco v. Chaney (1995) 31 Cal.App.4th 1809, 1816-1818 [remanding matter back to arbitrator to determine amount of fees and costs]; Mossman v. City of Oakdale...