Excerpt: ...rements 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 telep...

Excerpt: ...fect. (2) The demurrer is overruled on its merits. Jeld‐Wen's demurrer to the first cause of action for negligence is overruled. Plaintiff sufficiently alleges a cause of action for negligence. (See Complaint 1‐20.) Jeld‐Wen's demurrer to the second cause of action for products liability is overruled. Plaintiff sufficiently alleges a cause of action for products liability. (See Complaint 3‐4, 21‐36.) Jeld‐Wen's demurrer to...

Excerpt: ... complaint is sustained as to the first cause of action for strict liability manufacturing defect, the second cause of action for negligence in manufacturing, and the third cause of action for failure to warn, with 30 days leave to amend. As pled, the manufacturing defect and negligent manufacturing claims are conclusory and do not allege sufficient ultimate facts to provide support for the assertion that Defendants violated federal law. The cour...

Excerpt: ...Default Judgment, If Entered: Ccp Sec. 473(B). Defendant Anthony K. Ngai's motion to set aside the default entered on June 21, 2018 is denied. Mr. Ngai has not made a showing that the default was taken against him through his mistake, inadvertence, surprise, or excusable neglect. There is undisputed evidence that after he was personally served with the summons and complaint, Mr. Ngai retained counsel, who specifically informed plaintiff's...

Excerpt: ... he do anything sexual to you?"), she also testified that Mr. Hermogeno continued to ask her inappropriate personal questions, refused to allow Ms. Aung to visit the restroom as needed, and followed her to the restroom. Similarly, Ms. Aung testified that after a 2005 incident in which Kevin Tucker hugged her tightly and was suspended as a result, he, too, followed her to the restroom. Contrary to defendants' characterization of the conduc...

Excerpt: ...s failed to allege facts showing a special relationship that would support a duty on the part of defendant C. Mondavi & Family to protect plaintiff from harmful conduct of third parties or that any breach of such duty was a substantial cause of plaintiff's injuries. (See Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013 ["A complaint which lacks facts to show that a duty of care was owed is fatally defective . . . . In general, one ...

Excerpt: ...gations). In order to state a prima facie claim for punitive damages, a complaint must set forth the elements stated in the general punitive damage statute, Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud or malice. Civ. Code § 3294(a). "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant...

Excerpt: ...d Sixteenth Street Hotel, LLC's motion for summary judgment is denied. Plaintiff has identified facts‐the absence of a second handrail and defendants' failure to provide adequate illumination of the stairway‐from which a reasonable jury could infer that a dangerous condition existed and was a substantial factor in bringing about Mr. O'Connell's injuries. In Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, in contrast, defe...

Excerpt: ...bitration Against Defendant Derek Schulze Pending The Outcome Of This Action Pursuant To Ccp Section 1281.2(C) Defendant Derrek Schulze's motion to dismiss the arbitration is DENIED, as the court lacks jurisdiction to grant such relief. (Titan/Value Equities Group, Inc. v. Sup. Ct. (1994) 29 Cal.App.4th 482, 489.) Schulze's motion to stay the arbitration under CCP §1281.2(c) pending the outcome of this court case is GRANTED. The at‐iss...

Excerpt: ...itration and to stay litigation pending arbitration is GRANTED. Per the Dispute Resolution Protocol (DRP) in the TriNet Terms and Conditions Agreement (TCA), the Federal Arbitration Act applies to any dispute arising out of plaintiff's employment with ReadiSuite. DRP §9(a) expressly identifies ReadiSuite as a third‐party beneficiary that may enforce the arbitration provision. Defendants did not waive arbitration; they pled an arbitration a...

Excerpt: ...alment and prayer for punitive damages is GRANTED. A defendant shifts the burden of production to plaintiff if it can "present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854‐55.) Defendants showed via plaintiff's discovery responses his lack of evidence that FCA US knew of the defect in the Totally Integrated Power Module (TI...

Excerpt: ...Defendant Pour Guys SOMA LLC's motion for summary judgment or alternatively, summary adjudication of six specified issues is denied in its entirety. The doctrine of primary assumption of the risk does not apply to the facts of this case as a matter of law. Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148 explained that the doctrine applies to sporting and "recreational activities." The purpose of the doctrine is "to avoid chilling...

Excerpt: ... against him is granted. Due process demands, and the doctrine of extrinsic mistake permits, the vacation of the default and default judgment based on the undisputed fact that Mr. Schanzer had no knowledge of this case until November 2018 and that service by publication occurred without plaintiff Zakaria Saidin exhausting all possible sources to be able to serve Mr. Schanzer personally or by substitute service. Mr. Schanzer has shown that due to ...

Excerpt: ...ir motion to stay this action based on inconvenient forum is granted. This case is stayed pending the completion of proceedings in Florida on the claims alleged by plaintiffs Joseph Mizrachi and JAL Group, L.P. Plaintiffs have demonstrated that defendants have sufficient minimum contacts with California to warrant specific jurisdiction over defendants in this case. Defendants purposefully availed themselves of the benefits of California through t...

Excerpt: ...ahan. Michael Callahan has not made a general appearance and thus may still contend that he is not amenable to personal jurisdiction in California for this case. Plaintiffs Elliot Taylor and Ron Taylor have not shown that Michael Callahan has sufficient contacts with California to warrant the exercise of personal jurisdiction over him for this case either based on general or specific jurisdiction. The Taylors have shown that they validly served C...

Excerpt: ... L.P., and Barcelo Crestline Corporation's motion to strike portions of the complaint filed by plaintiffs Marion, Brian and Sharri Marcin is: a) granted without leave to amend as to the words "and physical injuries, all of" and "physical and" in lines 22 and 23 on page 7; b) granted without leave to amend as to the prayer for punitive damages but without prejudice to seeking leave to amend to add a prayer for punitive damages ...

Excerpt: ...s entirety. WFI's request for judicial notice of portions of plaintiff Maria Delgado's deposition testimony is denied. While the parties appear to view the judicial notice issue as either the content of all deposition testimony of a party that is inconsistent with the party's pleading is judicially noticeable or the content of a party's deposition testimony is never judicially noticeable, this court adopts the more nuanced and bet...

Excerpt: ...l four causes of action. Judge Chan's order filed May 29, 2018 does not bar any of the four claims alleged by Ms. Huang and Ms. Duong in this case either based on res judicata or collateral estoppel. Res judicata is inapplicable because this case does not involve either the same cause of action or remedy that was involved in the family law case. Collateral estoppel is inapplicable because none of the issues essential to plaintiffs prevailing ...

Excerpt: ...as to all three causes of action. Ms. Carlin adequately alleged that she was subject to unfavorable disparate treatment based on her gender, disability and age including the termination of her employment, which is sufficient for a FEHA discrimination claim. Ms. Carlin adequately alleged that her employment was terminated because she complained to Mr. Haschka that she had been unfavorably disparately treated due to her gender, which is sufficient ...

Excerpt: .... Boland fled the scene of the accident "when he knew that he had driven his vehicle into ¿. Leila J. [and] ¿ observed her laying in the crosswalk injured and in pain" suffices to allege malice as that word is defined in Civil Code 3294(c)(1). Mr. Boland's argument that his alleged fleeing of the scene was not an "injury‐producing event" is neither established by the language of the complaint nor supported by common sense ...

Excerpt: ...ky To Provide Further Responses At His Continued Deposition And For Sanctions. Defendant Nina Vaness' motion to compel plaintiff Timothy Galusky to provide further responses at his continued deposition and for monetary sanctions is denied and Mr. Galusky's request for monetary sanctions is also denied. None of the six sets of deposition questions identified in Ms. Vaness'statement of items in dispute seek sufficiently probative inform...

Excerpt: ...he requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears ...

Excerpt: ...e determination of the amount owed by TinyCo per the Amended and Restated Platform Agreement is not final (and thus not subject to claim preclusion) due to plaintiff Loytr, Inc.'s filing of an appeal in case number 551519. Even if the determination of the amount owed by TinyCo to Loytr was final and amenable to claim preclusion, on the record on this motion there are triable disputes: a) whether the parties to case number 551519 actually liti...

Excerpt: ...d as to both causes of action. As to the second cause of action, Mr. Longmore alleges sufficient facts showing that the parties waived the written modification requirement. Paragraphs 11 and 42 of the first amended complaint allege that North Star modified the agreement by reducing the base salary without a writing. "When one party has, through oral representations and conduct or custom, subsequently behaved in a manner antithetical to one or...

Excerpt: ...y is GRANTED. The evidence establishes that the entities that are seeking arbitration are the same as the entity that entered into the arbitration agreement with plaintiffs. (Lee Reply Dec., par. 5.) The motion to compel arbitration is timely and Rosenson v. Greenberg Glusker Fields Claman & Machtinger LLP (2012) 203 Cal.App.4th 688, 691 is inapposite. There, the court explains that the 30‐day deadline applies to one seeking to avoid the Mandat...

Excerpt: ... to amend. Roberts has leave to plead a claim such as concealment that can support the prayer for punitive damages. Roberts' allegations that defendants refused to repair the roof and/or abandoned her are not sufficient to support the claim as a matter of law per McDonnell v. American Trust Co. (1955) 130 Cal.App.2d 296. Any party who contests a tentative ruling must send an email to [email protected] with a copy to all other parties ...

Excerpt: ... served pursuant to CCP § 415.20(b), because the declaration of diligence accompanying the proof of service states that Lipton was employed at that address and personal service was attempted there, while Lipson's declaration that he neither resided nor worked at that address is uncontradicted (Lipson Decl. 3) and the server's notation was admittedly erroneous (Mughal Decl.). Therefore pursuant to CCP § 473(d) the default judgment is vac...

Excerpt: ... days leave to amend. Mr. Akrami has failed to allege facts showing a special relationship that would support a duty on the part of defendant Pernord Ricard USA to protect Mr. Akrami from harmful conduct of third parties and that any breach of such duty was a substantial cause of Mr. Akrami's injuries. (See Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013, ["A complaint which lacks facts to show that a duty of care was owed is fata...

Excerpt: ...The FACC pleads that the parties operated under this agreement "until January 2014." (Id. at 3:26.) The first cross‐complaint was not filed until July 2018, seemingly outside the four‐ year statute of limitations. (See CCP §337.) 2nd (Breach of Contract: Stock Purchase/Confidentiality Agreements). OVERRULED. This cause of action is adequately pled. Murry argues for a level of pleading particularity not required by California law. (Se...

Excerpt: ...#39;s demurrer to the first through fourth and sixth through tenth causes of action in the second amended complaint is: a) sustained without leave to amend as to the first cause of action for violation of residential building standards, the third cause of action for strict liability, the sixth cause of action for breach of fiduciary duty, the seventh cause of action for violation of governing documents, the eighth cause of action for unlawful LLC...

Excerpt: ...or recovery on the judgment per Insurance Code 11580(b)(2) is barred by the one year "statute of limitations" in the policy issued to Mr. Al Maliki. Assuming without deciding that the one year limitations period is an enforceable as to Ms. Baker-Flynn, her section 11580 claim did not accrue until judgment was entered in her favor and against Mr. Al Maliki on June 20, 2017, less than one month before this case was filed July 11, 2017. Any ...

Excerpt: ...Nguyen's first cause of action for FEHA gender discrimination, Ms. Nguyen satisfied her light burden of presenting evidence showing that she can establish a prima facie case. That evidence includes that Ms. Nguyen was performing competently after returning to work from her third maternity leave and she was treated differently from similarly situated employees who were not written up or terminated allowing for an inference of discriminatory mo...

Excerpt: ...in this case is whether plaintiff's participation in the May 3, 2013 filming of a sex video was a cause of his HIV infection. Asserting that it is highly probable he was infected from April 20 to May 13, 2013, plaintiff has provided a list of his sexual partners in that time frame and the partners' HIV test results. Defendant Cybernet Entertainment, LLC, however, seeks to further compel discovery of such information from four months befor...

Excerpt: ...intiff 942 Market Street Owners' Association's complaint is: a) sustained with twenty days leave to amend as to first through third, sixth and seventh causes of action for violation of residential building standards, negligence, strict liability, breach of fiduciary duty and violation of governing documents and b) sustained without leave to amend as to the fourth and eighth causes of action for breach of implied warranty of habitability a...

Excerpt: ...uash is granted. Plaintiff Oolong, LLC has the burden of demonstrating sufficient minimum contacts to warrant the exercise of general or specific jurisdiction. In this case, plaintiff's evidence (the declarations of McElhenney and Castaldo) fail to show jurisdiction over VCS or Mr. Zuccarelli, who are both located in Texas. The evidence establishes that VCS passively advertised the Leybold Syrus 1105 machine for sale on e‐Bay, plaintiff rea...

Excerpt: ...urther responses to deposition testimony and to produce documents and for monetary sanctions is granted in small part. Danilo Celeste is required to submit to a further session of his deposition to provide further response to the question whether "After the subject incident, did you ever receive any disciplinary comments from any supervisor?" and reasonable follow‐up questions. That question seeks directly relevant information and outwe...

Excerpt: ...onnici is entitled to have the judgment set aside based on the mandatory relief provisions of CCP 473(b). Mr. Molinari's second declaration of fault adequately establishes that the January 24 judgment was entered against Mr. Bonnici due to the mistake and neglect of Mr. Molinari. In keeping with the remedial purposes of CCP 473(b), the court determines that, while this motion surely could have been filed earlier, relief should not be denied t...

Excerpt: ...usly given leave to amend to plead specific facts showing his delayed discovery of Ford's alleged fraud. "In order to rely on the discovery rule for delayed accrual of a cause of action, [a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despit...

Excerpt: ...cause of action for negligent misrepresentation and overruled as to the third and fifth causes of action for fraud. Ms. Akutagawa alleges that defendants negligently misrepresented that they would pay the $125,000. (FAC par. 36 (emphasis added)). A negligent misrepresentation cause of action cannot be based on a promise regarding future conduct. It must be made with respect to "a past or existing material fact." (Tarmann v. State Farm Mut...

Excerpt: ... Notice On Motions Relating To The Identity Of Marriage Counselors And MarriageRulings:Set for hearing on Wednesday, September 5, 2018, Line 9, DEFENDANT GEORGE PFLEGER's Motion For An Order Confirming The Legal Right To Review Unredacted Medical Records, Permitting Defendant To Subpoena Marriage Counselors For Appearance At Depositions With Production Of Documents On Shortened Notice Permitting Defendant To Subpoena Marriage Counselors Recor...

Excerpt: ... third cause of action in the second amended complaint filed by plaintiff Kai Kopp is overruled as to the second cause of action for negligence and sustained without leave to amend as to the third cause of action for negligent supervision, hiring and training. The negligence cause of action, but not the negligent supervision cause of action, is based on the same general set of facts as the complaint. Both the complaint and second cause of action ...

Excerpt: ...in its favor on the retaliation claims and thus re-affirms the tentative ruling issued prior to the July 26, 2018 hearing with some additional language as follows: Defendant Huddle, Inc.'s motion for summary judgment is denied and its alternative motion for summary adjudication is denied as to the third, fifth, sixth, and eighth causes of action for age discrimination, failure to prevent discrimination, and violation of the UCL and granted as...

Excerpt: ...ls of confidential information called "Highly Confidential" and "Confidential"; 2) either side may designate any information as either Highly Confidential or Confidential subject to a motion by the other side challenging that designation; 3) both Highly Confidential and Confidential Information may be used by the receiving party only for this case and must be returned at the conclusion of the case with a declaration from an attorn...

Excerpt: ...Further Responses To Plaintiffs Demand For Production Of Documents And Things And Defendants' Appearance At Depositions. (Tentative Ruling Only) (Part 2 Of 2) Motion against BB&R denied as to RPD No. 33-44 (overbroad, fails to identify documents sought with reasonable particularity) 45, 46, 48 (overbroad, potentially invades privacy in employment records) and 47 (Overbroad, fails to identify documents sought with reasonable particularity) Mot...

Excerpt: ...s Inc As Does 2 And 102 Plaintiff Mint Collection-410-418 Jessie Street Condominium Owners' Association's motion for leave to substitute Patrick McNerney as Does 1 and 101 and Veritas Investments, Inc, as Does 2 and 102 is denied without prejudice to being refiled as an ex parte application if within the next two months the trial date is continued to a day on or after May 6, 2019. Any legal prejudice to Mr. McNerney and Veritas by the gra...

Excerpt: ...tation, false promise, deceit, and negligent infliction of emotional distress in the second amended complaint filed by plaintiff Trent Jason is sustained without leave to amend as to all those causes of action. As for the unfair competition claim, the SAC fails to allege facts showing that CSAA engaged in unfair, dishonest, deceptive or fraudulent practices with intent to defraud the public in violation of Civil Code 1711. As for the misrepresent...

Excerpt: ...avelers Indemnity Company's demurrer to both causes of action alleged in the first amended complaint filed by plaintiff Electrical Industry Service Bureau, Inc. is sustained without leave to amend as to the first cause of action for failure to pay on a payment bond and overruled as to the second cause of action for violation of the Unfair Competition Law. EISB filed this lawsuit after the expiration of the limitations period for a claim for f...

Excerpt: ...st Amended Cross Complaint. Cross‐defendant Victor Marquez's anti‐SLAPP Motion to Strike the third cause of action for attempted extortion in the first amended cross‐complaint filed by Elizabeth Sousa is denied. The merits of the motion will be addressed even though the motion was filed outside the 60‐day time period of CCP 425.16(f). Mr. Marquez received an extension of time to file his responsive pleading and reasonably believed tha...

Excerpt: ...tations and internal quotation marks omitted); see Nativi, 223 Cal. App. 4that 317 ("A trial court must balance the various interests in deciding whether dissemination of the documents should be restricted."). "[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought." Fairmont Ins. Co. v. Superior Court, 22 Cal. 4th 245, 255 (2000). But the movant cannot satisfy this burden by subm...

Excerpt: ...st for a trial continuance is denied. Ms. Harris' proposed new claims (the abuse of process, injunction and a portion of her declaratory relief claims) alleging invalidity of the mechanic's lien and lis pendens are not actionable and thus she is denied leave to amend those claims. The filing of a mechanic's lien and a lis pendens are absolutely privileged. Ms. Harris is granted leave to allege her proposed new section 17200 claim and ...