Excerpt: ...ted of falsely impersonating another person on a proof of service and ordered not work in any capacity as a process server. However, that evidence is not new evidence in that the facts were not only known, but argued in the moving papers seeking relief from default, see Declaration of Todd Yancey (“Yancey”) filed November 6, 2019 ¶¶ 9, 10, and at the hearing on relief from default on January 31, 2020. Sun Valley also provides a declaration ...

Excerpt: ...�) and RPA2 LLC dba WIN HOME INSPECTION SAN MATEO's (“WIN”) Motion to Strike the punitive damages allegations in Plaintiffs' Complaint for Damages is GRANTED with leave to amend. As a general rule, punitive damages are disfavored and are awarded “with the greatest caution” and only in the “clearest of cases.” Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347. The law requires that a plaintiff seeking punitive damages pro...

Excerpt: ...s wrongfully detained by Defendants, the manner in which Defendants came into possession of the property, and the reason for the detention. (See C.C.P. § 512.010(b)(2).) The contract for the vehicle was entered into between Towne Ford Sales and Jahnetics California, and the contract was then assigned by Towne Ford Sales to Plaintiff. (See Dunstan Decl., Exh. A.) However, Plaintiff now claims that the vehicle is in the possession of Defendants Ja...

Excerpt: ... Court's order, which was not done, or answer, which was done. Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 7.152 et seq. (TRG 2019). Unlike the situation where a demurrer is sustained with leave to amend and the law is uncertain on whether a successive demurrer can be filed to the amended complaint, id. at § 7:139 et seq., the law does not allow successive demurrers when the initial demurrer has been overruled in its...

Excerpt: ...intiff's claims for the second cause of action for negligent misrepresentation, third cause of action for intentional misrepresentation, fourth cause of action for unfair business practices, and sixth cause of action for professional negligence were barred by the statute of limitations. For the second, third and sixth causes of action, there is no dispute that the longest statute of limitations is three years and that Plaintiff's complaint filed ...

Excerpt: ...e sufficient allegations in the complaint to establish partnership. A partnership is “an association of two or more persons to carry on as co‐owners a business for profit.” Holmes v. Lerner (1999) 74 Cal.App.4th 442, 453 citing the Uniform Partnership Act. While the sharing of profits or management or control are indicia of partnership, there are other elements can establish partnership. Id. at 456. For example, in Holmes, Pat Holmes was Sa...

Excerpt: ..., for the reasons set forth below. 1 st COA for Declaratory Relief In their first cause of action, the Tangonans allege an “actual controversy” exists as to which party is entitled to the surplus funds from the foreclosure sale, and they seek a judicial determination as to “whether the written agreement is valid.” The Tangonans do not assert any grounds for declaratory relief. The issue of whether the Tangonans are entitled to surplus fun...

Excerpt: ... licensed attorney, cannot represent plaintiffs Marquetta and Marquel Benton. Plaintiffs Marquetta and Marquel Benton must represent themselves in pro per or they must get an attorney. As to the Fourth Cause of Action alleging a violation of the Ralph Act (Civ. Code § 51.7), the Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Code Civ. Proc. § 430.010(e). As discussed in the case law cited by the parties, the Legislature enacted the Ralph Act pri...

Excerpt: ...bly incurred following Defendant's May 2019 § 998 offer to repurchase the vehicle. According to Defendant, “all of the [] claimed costs and expenses incurred after the FCA May 3, 2019 good faith offer should be disallowed.” Opposition, p.9. However, additional fees were incurred after this date, at least in part, as a result of Defendant's failure to provide a specific repurchase amount in its offer. Plaintiff's counsel's efforts to determin...

Excerpt: ...tains the material terms. Weddington Productions, Inc. v. Flick, 60 Cal. App. 4th 793, 797 (2d Dist. 1998). The settlement agreement must be a valid and binding agreement according to contract principles. Kohn v. Jaymar‐Ruby, Inc., 23 Cal. App. 4th 1530, 1533 (1st Dist. 1994). “A settlement agreement, like any other contract, is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” L...

Excerpt: ...hase date. Defendants are therefore entitled to judgment in their favor.” MPA, p.9. Unfortunately, Defendant does not distinguish in its analysis between the delayed discovery rule as applied to express, as opposed to implied, warranties. Indeed, Defendant conflates the analysis. In its discussion of Plaintiff's claim for breach of express warranty, Defendant cites Mexia v. Rinker Boat Co. (2009) 174 Cal. App. 4th 1297, 1306 for the proposition...

Excerpt: ... on as follows: (1) Liberty's Request for Judicial Notice is GRANTED. However, while the court takes judicial notice of the existence of the bankruptcy docket as well as the existence of documents filed in Riley's bankruptcy case (see Liberty's Request for Judicial Notice, Exhs. 1‐10), the court does not take judicial notice of the matters asserted therein. (See Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 660.) The ...

Excerpt: ...‐party's interests are identical to those of the moving party and where joinder would conserve the parties' resources.” (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial, Law and Motion Model Forms, § 16C:2.Sample Motion for Joinder—Memorandum, citing Calvert Fire Ins. Co. v. Kropper (1983) 141 Cal. App. 3d 901.) FAR fails to establish that its interests are identical to Liberty's interest with respect to Liberty's Motion for Ju...

Excerpt: ...efendant Peng As an initial matter, the court notes Defendants Peng and Ng are not similarly situated with respect to the procedural facts at issue. Notably, Defendant Peng was not named as a Respondent in the Labor Commissioner's action pursuant to Labor Code § 98.7(a) and (b). This fact is fatal to the Commissioner's claims against Defendant Peng in this action pursuant to Labor Code § 98.7(c). The Commissioner's April 20, 2018 determination ...

Excerpt: ... are not similarly situated with respect to the procedural facts at issue. Notably, Defendant Peng was not named as a Respondent in the Labor Commissioner's action pursuant to Labor Code § 98.7(a) and (b). This fact is fatal to the Commissioner's claims against Defendant Peng in this action pursuant to Labor Code § 98.7(c). The Commissioner's April 20, 2018 determination specifically addresses the individual respondents' participation in the Co...

Excerpt: ...siness & Professions Code § 17200 related to a non‐compete clause in the contract between Plaintiff and Defendants. This motion presents the question of whether this Court should use its discretion to stay or dismiss this case based upon the parties' contract which provided in section 13.2 of the agreement that the “Agreement shall be construed and interpreted in accordance with the laws of the State of Arizona applicable to agreements made ...

Excerpt: ...ursuant to Code of Civil Procedure § 664.6 to resolve this dispute. The Court rules as follows: Interpretation of a contract is a judicial function. The trial court “give[s] effect to the mutual intention of the parties as it existed” at the time the contract was executed. (Civ. Code, § 1636.) Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract's terms. (Civ. Code, �...

Excerpt: ...t. First, Plaintiff's calculations are $5 off. See 1‐23‐20 Harnett Decl., ¶9 (the numbers add up to $2,990, not $2,995. Further, the $350 requested for anticipated attorney time attending the hearing will likely to unnecessary, because the Tentative Ruling is unlikely to be opposed. Accordingly, Plaintiff Kenneth Grayson is entitled to Judgment in his favor, and against Defendant America Home Builders, Inc., a California Corporation, dba Goo...

Excerpt: ...nia sufficient to invoke personal jurisdiction. To be subject to a court's specific jurisdiction, (1) the non‐resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arise...

Excerpt: ...get an attorney. Defendant Burlington Coat Factory of Texas, Inc.'s Motion to Strike portions of Plaintiff Bertha Benton et. al.'s Third Amended Complaint (TAC) is GRANTED WITHOUT LEAVE TO AMEND, for the same reasons set forth in the Court's 10‐15‐19 Minute Order granting Defendant's Motion to Strike Plaintiffs' request for punitive damages in the Second Amended Complaint. Code Civ. Proc. §§ 435‐437; Civ. Code § 3294. As stated in the 10...

Excerpt: ...est the tentative, it may be heard on the same date as the demurrer in Line 2. ORIGINAL TENTATIVE RULING Defendant Richard A. Keating's (“Keating”) motion to strike portions of the Fourth Amended Complaint is ruled upon as follows: The motion to strike the punitive damage claim is DENIED. Punitive damages may be awarded in nuisance claims when the jury “could reasonably infer that defendants acted in callous disregard of plaintiffs' rights,...

Excerpt: ...to Strike the Memorandum of Costs filed by Petitioner Retail Delivery Drivers, Drivers‐Salesmen & Helpers & Auto Truck Drivers Union Local 2875 (“Petitioner”), is GRANTED. Petitioner initiated this action by filing a Petition to Compel Arbitration. Prior to the court's ruling on the Petition to Compel Arbitration on March 4, 2020, Petitioner filed a Memorandum of Costs on February 13, 2020. California Rules of Court (“CRC”) Rule 3.1700 ...

Excerpt: ...ot deemed filed merely by virtue of the Court granting leave to amend. A proposed amended pleading must be separately filed with the Clerk's office after leave to amend has been granted. Here, the “First Amended Cross‐Complaint” (FACC) at issue in this Motion to Strike has not been properly filed with the Court. The Court's 12‐5‐19 Order merely granted the Hogans leave to file it. However, notwithstanding this procedural defect, under t...

Excerpt: ...written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitrati...

Excerpt: ...and then has taken the motion offcalendar, refiled it and continued the hearing date due to Plaintiff's counsel's medical issues. On January 17, 2020, this motion was set for hearing. Plaintiff filed no opposition, but after the date the opposition was due, Plaintiff's counsel requested a continuance for medical reasons. Over defense objections on the basis that the hearing had been continued previously and defense counsel did not want to incur u...