Excerpt: ...n the alternative, summary adjudication on their complaint for a tax refund. Plaintiffs assert that defendant California Franchise Tax Board did not mail them a notice of proposed assessment (NPA) for a purported 2009 tax deficiency and, even if it did, the NPA was mailed to the wrong address, voiding the assessment. In February 2014, an FTB tax auditor notified the Silvas' tax representative, CPA John Lavorato, that the FTB's audit of th...

Excerpt: ...se of action" ‐ CCP ?430.10(e). The demurrer is OVERRULED. At a minimum, a petition for writ of mandate is adequately pled. Procedures applicable to demurrers in ordinary civil actions also apply to administrative mandamus proceedings. (See CCP ?1109.) Thus, I may consider only the pleading's contents, and all of its allegations are deemed true. (Kleiner v. Garrison (1947) 82 Cal.App.2d 442, 445.) The secretary requests that I adopt his...

Excerpt: ...Trial (TRG 2016) ?7:65.) Defendants' reply brief asserts that jurisdiction is lacking over the Poe plaintiffs, but this is not a ground stated in defendants' demurrers. Plaintiffs adequately plead alter ego and veil piercing theories. Defendants say these claims will not be proven, but such argument is not for the pleading stage. Under these theories, a court may disregard the corporate entity and treat the acts as if they were done by th...

Excerpt: ... is granted. Per CCP 391.3 and 391.4, unless Mr. Yan furnishes acceptable security in the amount of $50,000 for the benefit of Ms. Lei and Mr. Fu no later than July 31, 2018, this case will be dismissed as to Ms. Lei and Mr. Fu on August 1, 2018. Per CCP 391.6, this case is stayed until July 31, 2018 or the date as Mr. Yan furnishes the required security, whichever occurs first. Ms. Lei and Mr. Fu have shown that Mr. Yan is a vexatious litigant w...

Excerpt: ...inst them by plaintiff Gilberto Robles Vasquez complaint is granted as to both defendants. The undisputed facts show that Bosa CA did not direct the manner of the work performed by E&S and did not directly participate in that work. A "hirer's failure to correct an unsafe condition, by itself, does not establish an affirmative contribution." (Khosh v. Staples Construction Company, Inc. (2016) 4 Cal.App.5th 712, 718). Ray v. Silverado C...

Excerpt: ...tract E: Failure To Defend And Fifth Cause Of Action For Declaratory Relief Re: Duty To Defend. Cross‐complainant City and County of San Francisco's motion for summary adjudication on its third and fifth causes of action for breach of contract and declaratory relief for a duty to defend against cross‐defendant Thyssenkrupp Elevator America is granted. Based on the undisputed facts, the City is entitled to an order that Thyssenkrupp is obl...

Excerpt: ...the summons and complaint filed by plaintiff Golden State Broadcasting, LLC states that Mr. Malvar was substitute served at a UPS store on the last possible day to effect service to avoid the mandatory 3 year period for service. While not argued by GSB, substitute service on an individual is permitted at a UPS store without need for a showing that personal service could not be made after reasonable diligence per CCP 415.20(c). However, this form ...

Excerpt: ...ed complaint and to reopen discovery is granted on specified conditions that plaintiffs must accept in writing before the hearing or orally at the hearing and, if they does not, the motion is denied. The conditions on the granting of this motion are: 1) the trial is continued to March 18, 2019 at 9:30am in department 206 with all discovery deadlines triggered off the new trial date; 2) plaintiffs must pay $3,000 to defendants FCA US LLC and Chrys...

Excerpt: ... discovery is granted on specified conditions that Mr. Witt must accept in writing before the hearing or orally at the hearing and, if he does not, the motion is denied. The conditions on the granting of this motion are: 1) the trial is continued to March 4, 2019 at 9:30am in department 206 with all discovery deadlines triggered off the new trial date; 2) Mr. Witt must pay $10,000 to defendants FCA US LLC and Crown Automotive, Inc. no later than ...

Excerpt: ...mplaint filed by plaintiff Trent Jason is: a) overruled as to the first, second, and third causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, and insurance bad faith for failure to properly investigate a claim; b) sustained with twenty days leave to amend as to the fourth through seventh and ninth causes of action for unfair competition, misrepresentation, false promise, fraud, and negligent inflic...

Excerpt: ...st amended complaint are sustained with 20 days leave to amend. Plaintiff is given one last opportunity to attempt to plead with particularity one or more coherent fraud claims for intentional misrepresentation and/or concealment/partial disclosure. The fifth, sixth and tenth causes of action are currently a jumble of those two distinct fraud claims, improperly refer to a fiduciary relationship, and refer to misrepresentations which occurred afte...

Excerpt: ...a Meats (2004) 121 Cal. App. 4th 1238, a decision of the First District which has not been overruled or criticized by any published authority, holds that a claim brought by a minority shareholder alleging that payments made by a corporation to a majority shareholder were in the form of excessive compensation to the majority shareholder and can be the basis of an individual claim on behalf of the minority shareholder against the majority sharehold...

Excerpt: ...um's motion for summary judgment on the second amended complaint filed by plaintiff Nripendra Dhillon is denied as to the first cause of action for retaliation which is only alleged against the Regents and is granted as to the second cause of action for intentional infliction of emotional distress which is only alleged against Dr. Basbaum. Liberally construing the evidence presented by Dr. Dhillon, that evidence creates a triable dispute whet...

Excerpt: ...personal jurisdiction over Mr. Schwartz per specific jurisdiction principles. Mr. Schwartz purposefully availed himself of the benefits of California and his California contacts relate to plaintiffs' fraud claims. Plaintiffs presented evidence that Mr. Schwartz traveled to California for a meeting with Mr. Chung to discuss Frankly, Inc.'s acquisition of WorldNow Media, forwarded Mr. Chung's emails to plaintiffs, and sent WorldNow empl...

Excerpt: ...ce in trying to personally serve Mr. Devesa after finding out that Mr. Devesa no longer lived at his last known address by attempting service two times at the address for MedWhat.com Inc. listed on its website, a company that Mr. Davesa served as CEO, and three times at the address for Mr. Devesa's other company, Linda HealthCare Corporation Corp, listed on the company's website. Plaintiffs' subsequent substituted service at the addre...

Excerpt: ...e Company S Special Motion To Strike Plaintiffs Complaint Pursuant To Code Civ Proc 42516. The insurers' anti-SLAPP motion to strike is DENIED. The insurers meet prong 1 of the anti-SLAPP statute. Plaintiffs' complaint includes numerous references to the insurers' communications with counsel during the federal action and asserts them as a basis for liability. (Complaint, pars. 9, 103-112). Plaintiffs' complaint does more than make...

Excerpt: ... each independently sufficient. First, APS&EE's memorandum violates the 15‐page limit. (CRC 3.1113(d)). Second, granting the motion would only increase costs for all parties and this Court. APS&EE concedes that (1) the relief sought by the proposed settlement is appropriate and (2) its only interest is in attorney fees and costs for a less‐comprehensive Proposition 65 case it filed against the same defendant in Los Angeles. APS&EE cites n...

Excerpt: ...;s asserted second cause of action for punitive damages is not a separate claim from his first cause of action for defamation for purposes of this motion. Mr. Cho and Mr. Bae satisfied their first prong burden of showing that the advertisement in the Korea Times was made in a public forum in connection with an issue of public interest (CCP 425.16 (e)(3).) Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 is distinguishable. There, the defendant beli...

Excerpt: ... possess and cannot reasonably obtain evidence that decedent Jeffrey Ebbesen was exposed to asbestos‐containing products or materials attributable to Defendant. Plaintiffs' discovery responses are not factually devoid under Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. If a hearing is requested, it will be at 9:30a.m. A court reporter will not be provided by the court. If any party wishes to have the matter reported, the parties ...

Excerpt: ...Amended Complaint, For An Order Dismissing Class Claims, And Approval Of Notice To Class Members. Plaintiffs' motion for leave to file a second amended complaint, for an order dismissing class claims, and for approval of notice to class members is granted in its entirety. Defendants Harcourt Group, LLC and Sojourn Properties, Inc. do not object to the dismissal of the class claims and in light of the affirmance of the denial of class certific...

Excerpt: ... plaintiff Anthony Lee is overruled. The allegations supporting the conversion claim are similar to the allegations that were found to be sufficient to allege a viable conversion claim in Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027. Mr. Lee alleges that, per the Compensation Agreement, defendants owe him at least 12.72% of the 25 million XRP options and/or corresponding XRP; the defendants converted Mr. Lee's property by wrongfully withhold...

Excerpt: ...a. Plaintiff Cheryl Luna acted with reasonable diligence in trying to personally serve Mr. Saranga by attempting service at his home address nine times, including three occasions when a guard confirmed that Mr. Saranga lived in the apartment where personal service was attempted. Although the process server did not subserve a competent household member, leaving the papers with the guard on duty constituted substantial compliance with the statutory...

Excerpt: ... or, in the alternative, motion for summary adjudication of issues is denied in its entirety. As to issues 1, 2, and 4, there are triable disputes whether the assertedly harassing conduct was sufficiently severe or pervasive to constitute sexual harassment and whether Bloomingdale's failed to prevent the harassment. The record is replete with offensive comments and Ms. Kalantari complained about them to Bloomingdale's. (Kalantari Depo. 10...

Excerpt: ...gainst them on October 24, 2017 is granted. The defaults are now vacated. Moving defendants have shown that they are entitled to the relief they seek per CCP 473(b). Very slight evidence is required to support vacating defaults and doing so comports with California's strong policy of deciding cases on their merits. (Shamblain v. Brattain (1988) 44 Cal. 3d 474, 478). Nor has plaintiff Golden State Broadcasting, LLC shown that it would suffer a...

Excerpt: ...ontract claim and relief on a motion for summary judgment may not be granted on an unalleged claim. As was stated in the April 2, 2018 order denying Mr. Elder's CCP 664.6 motion, Mr. Elder has not shown that the parties entered into a settlement. In particular, Mr. Elder failed to show that the asserted agreement complied with SF Charter 6.102, was signed by the City, approved by SFPD, which is a condition specifically set forth in the assert...

Excerpt: ...10(A)(2)]. Defendant/Respondent Minnesota Lawyers Mutual Insurance Company's ("Minnesota") motion to stay or dismiss action based on forum non conveniens is GRANTED. The court orders this action STAYED pending resolution of Modell's petition for assumption of jurisdiction over trust presently pending in Maryland. The court grants Minnesota's supplemental request for judicial notice. Berman is a California resident, but Minneso...

Excerpt: ...sion Systems, LLC is denied. Defendants have not shown on this pleading motion that the allegations regarding the Orange County case are irrelevant or legally prejudicial to them. This ruling is merely a decision at this stage of the case not to strike the references to the Orange County case in the complaint. It is not, and should not be taken, as an indication on how the court would rule on other matters pertaining to the Orange County case, su...

Excerpt: ...mary adjudication is denied as to the first cause of action for dangerous condition of public property and granted as to the second, third and fourth causes of action for vicarious liability for employee, vicarious liability for independent contractor, and failure to discharge mandatory duty. The City's argument that natural condition immunity bars plaintiffs' claim for dangerous condition of public property lacks merit. There is a disput...

Excerpt: ...Marine Services Company, LLC, a Delaware Limited Liability Corporation's motion for summary judgment is denied. Defendant failed to sustain its burden of demonstrating that Plaintiff does not possess and cannot reasonably obtain evidence that he was exposed to asbestos‐ containing products or materials attributable to Defendant. Statements made during the deposition of William Jellyman preclude Defendant from successfully invoking the factu...

Excerpt: ...nt Anthony Lee's anti-SLAPP motion to strike both causes of action alleged in the cross-complaint filed by Hosie Rice LLP, Spencer Hosie, and Diane Rice is granted as to both causes of action. Mr. Lee satisfied his first prong burden of showing that both causes of action arise from petitioning activity protected by the anti-SLAPP statute. Mr. Lee commenced his action to recover fees on January 3, 2017. Paragraphs 43-44 of the cross-complaint ...

Excerpt: ... Ms. Copeland failed to provide admissible evidence that this case has a significant relationship with the two uninsured motorist arbitrations to warrant denial of the insurers' contractual right to have the uninsured motorist claims determined by arbitration. The only evidence submitted by Ms. Copeland regarding the relationship between this case and the two uninsured motorist arbitrations is her counsel's belief based on the hearsay sta...

Excerpt: ...ly obtain, clear and convincing evidence that defendant acted with the requisite malice, fraud or oppression to warrant the imposition of punitive damages. Plaintiff's responses to defendant's special interrogatories preclude defendant from successfully invoking the factually devoid prong of Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. If a hearing is requested, it will be at 9:30a.m. A court reporter will not be provided by t...

Excerpt: ...t in favor of defendant City and County of San Francisco was erroneous. After another full review of the moving, opposition and reply papers on the summary judgment motion as well as review of the papers filed on this motion, the court remains of the view that the undisputed facts establish that the physical characteristics of the intersection do not constitute a dangerous condition of public property, whether considered separately or in conjunct...

Excerpt: ...granted without leave to amend but without prejudice to plaintiffs' filing a motion for leave to add punitive damages allegations if plaintiffs later obtain information that defendants' employees and defendants acted in a way that supports punitive damages liability against either or both of the defendants. The complaint does not allege facts showing either malice, fraud or oppression by defendants' employees or conduct by defendants ...

Excerpt: ...se of action for breach of the implied warranty of merchantability and sustained with twenty days leave to amend as to seventh cause of action for fraud by omission. The implied warranty claim is barred by the four year statute of limitations. Commercial Code 2725(2) provides that: "A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender...

Excerpt: ...secution is denied. California favors a policy of disposing of cases on the merits. (CCP 583.130.) Weighing the factors set forth in CRC 3.1342, dismissal is not warranted for plaintiff's delay in formally serving Rodrick. This case involves a simple trip and fall and the incident occurred in December of 2013. Rodrick was first notified of the claim in April 2014 when plaintiff's counsel contacted the claims representative from Rodrick...

Excerpt: ... 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 signed via fa...

Excerpt: ...Motion For Order To Seal Unredacted Portions Of Plaintiff'S Complaint and for Sanctions Under Ccp 177.5. Defendant State Compensation Insurance Fund's motion for order to seal unredacted portions of plaintiff's complaint and for sanctions is continued to May 29, 2018 to give State Fund an opportunity to substantively respond to the argument in plaintiffs' opposition memorandum that sealing of the settlement agreement is contrary t...

Excerpt: ...iff suing under the fictitious name of John Smith is granted as to the sixth through eighth causes of action and denied as to the ninth and tenth causes of action. Plaintiff concedes that at the trial court level his seventh cause of action for malicious prosecution should be stricken per the anti-SLAPP statute. Ms. Chan and API satisfied their first prong burden of showing that the sixth cause of action for defamation and the eighth cause of act...

Excerpt: ...second causes of action seeking declaratory relief that the San Francisco County Transportation Authority is subject to the San Francisco Sunshine Ordinance lack merit. The SFUFC is an agency of the State of California and thus is exempt from a local ordinance such as the Sunshine Ordinance. Moreover, the language of the Sunshine Ordinance makes clear that the SFTCA is not covered by that Ordinance. SFUFC's argument that the Bay Area Bill pro...

Excerpt: ...ory Charter School, Inc.'s motion to quash is granted as to both defendants. Plaintiff Charter Asset Management Fund, L.P. has not shown that either Christopher Clemons or Erica Anthony had actual or ostensible authority to bind LGS and LCP when they signed the factoring agreements. LGS and LCP did not retain either Mr. Clemons or Ms. Anthony with regard to the factoring agreements nor did they give them authority to enter into those agreemen...

Excerpt: ...ation and stay proceedings is granted in its entirety. All claims alleged by plaintiff Garrett Callen must be resolved by arbitration per the parties' agreement and this case is stayed pending the conclusion of the arbitration proceedings. Assuming without deciding that the arbitration agreement is procedurally unconscionable, it is nonetheless enforceable because it is not substantively unconscionable. The attorneys' fees and costs provi...

Excerpt: ...alleged by plaintiff Steven McIlroy must be resolved by arbitration per the parties' agreement and this case is stayed pending the conclusion of the arbitration proceedings. Assuming without deciding that the arbitration agreement is procedurally unconscionable, it is nonetheless enforceable because it is not substantively unconscionable. The attorneys' fees and costs provision is not substantively unconscionable because it bars the arbit...

Excerpt: ...d without prejudice to Mr. Miranda addressing the deficiencies in the moving papers in a re‐filed motion, if he can do so in good faith. The moving papers fail to provide a sufficient quantitative or qualitative analysis of any of the asserted violations of the Labor Code which form the basis of Mr. Miranda's PAGA claims. Nor do the moving papers provide a sufficient explanation why Mr. Miranda is receiving any payment, much less $30,000, f...

Excerpt: ... of real party in interest Tanesh Nutall is overruled as to the first cause of action for violation of the Unruh Act and sustained with ten days leave to amend as to the second cause of action for violation of Government Code 11135(a). Liberally construed, the complaint sufficiently alleges facts that show that, at the time of the alleged discrimination against Ms. Nutall, the City was conducting itself as a "business establishment" withi...

Excerpt: ...en 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 sign given...

Excerpt: ..., summary adjudication on its sole cause of action for money due on dishonor of check against defendants Paul Han Kim and In Ju Kim is denied. Wells Fargo has provided insufficient evidence to satisfy its burden of showing that it is a holder in due course. In particular, Wells Fargo fails to provide any evidence when it paid any money on the check, what it had done before doing so, whether it had any notice that the check might be dishonored, an...

Excerpt: ...Monday, May 7, 2018, Line 17, PETITIONER JOEL WARNE Motion For: Sanctions Pursuant To, Inter Alia, C.C.P. 128.7(C)(1) And Civ. Code 3294 In Re: False Representations; Reconsideration Pursuant To, Inter Alia, C.C.P. 1008, Et Seq.; Declaratory Judgment Clarifying Scope Of Orders; And Memorandum Of Points And Authorities In Support Of The Same. Petitioner Joel Warne's motion for sanctions and reconsideration of the order dated May 10, 2017 is de...

Excerpt: ...of action in the second amended complaint filed by plaintiff Jack Reisner is: a) is overruled as to the first cause of action for common law discrimination and retaliation against public policy against UBC; b) sustained without leave to amend as to the first cause of action against Job Corps; c) overruled as to the second cause of action for violation of Labor Code 1102.5; d) sustained with twenty days leave to amend as to the third case of actio...

Excerpt: ...xpenses authorized by section 1033.5 are those to attend depositions. (? 1033.5, subd. (a)(3).)" ( Ladas v. CSAA (1993) 19 Cal.App.4th 761, 775.) TPG's distinction between local and non‐local travel expenses does not change this rule. The court denies the motion as to the e‐filing fees, which TPG substantiates in its opposition. The court denies Heyman's motion to tax the entire costs memo because it was served by e‐mail. Heyman...