Excerpt: ... (1) breach of CC&R's, (2) breach of fiduciary duty, (3) nuisance, (4) negligence, and (5) declaratory relief. HOA's moving papers fails to address all theories of liability asserted by Sarko. HOA completely ignores the cross‐ claim for declaratory relief. The Cross‐ Complaint alleges a breach of fiduciary duties resulting from (1) the HOA's selective enforcement of the CC&R's with respect to Sarko's fence and the HOA's failure to follow the ...

Excerpt: ...9, 2022 from Defendant to the Commission on Judicial Performance, which was not served on Plaintiff. The referenced attachments were not enclosed. The special motion to strike, filed by Cross‐defendant Portfolio Recovery Associates, LLC, is GRANTED as to the entire cross‐complaint and each cause of action. Code of Civil Procedure section 425.16, the anti‐SLAPP statute (“strategic lawsuit against public participation”), is designed to pr...

Excerpt: ...ate steps to have the original Brotman Declaration removed from the Court file and replaced by a redacted copy. Even if Plaintiff does not believe that the document contains confidential information, she may not file documents designated by Defendant in the public court file. The Supreme Court has instructed trial courts to use the following framework in deciding discovery disputes that involve the privacy rights: The state Constitution expressly...

Excerpt: ...S OF ACTION Any Defendant, if the required meet‐and‐confer is unsuccessful, may challenge any new cause of action asserted in the Third Amended Complaint by subsequent motion/demurrer. JOINDER The joinder by Yafei Luu, Chao Liu, and Zhiying Qiu is GRANTED. DEMURRER ON FAILURE TO JOIN INDISPENSIBLE PARTIES Nianshun Construction Co., Ltd. has now been added as a plaintiff. Therefore, Defendants' argument that there is a failure to join it as an...

Excerpt: ...ree, PARTIES ARE TO APPEAR. The parties are to be prepared to address whether Plaintiff is required to file a probate petition before proceeding with this action. Plaintiff alleges that she is the sole beneficiary and executor of decedent James Wilmoth's estate, but the parties indicate that no probate action has been filed. Plaintiff claims that Mr. Wilmoth's estate was a small estate that is statutorily exempt from probate, but then also acknow...

Excerpt: ...LC's Motion to Compel Race Technologies, LLC's Further Responses to Requests for Production and Request for Sanctions is GRANTED. Race Technologies, LLC shall provide further responses within thirty (30) days of written notice of the entry of this order. El Camino Motors, LLC (“El Camino”), by this Motion and its concurrently filed companion motion, seeks to compel further responses from Race Technologies, LLC (“Race Tech”) to specially p...

Excerpt: ...ture. Plaintiff seeks to compel further responses to its Requests for Production of Documents, Set One, Nos. 27, 28, 31, 33, 35‐40, and 42 from Defendant Timothy Draegen. The requests seek documents relating to the process by which ownership of Dmarcian EU was allocated. Plaintiff contends the documents are relevant in light of his claim that he was granted an ownership interest in Dmarcian EU. In Defendant's supplemental responses to the disco...

Excerpt: ..., Stephen Lee and Sincere Care Management Corporation (“Defendants”) to the First Amended Complaint of Plaintiff Dora Guerrero, individually and as successor‐in‐interest to the Estate of James R. Wilmoth (“Plaintiff”), PARTIES ARE TO APPEAR. The parties are to be prepared to address whether Plaintiff is required to file a probate petition before proceeding with this action. Plaintiff alleges that she is the sole beneficiary and execut...

Excerpt: ...ds even if statutory relief is unavailable.” (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 910, reh'g denied (Nov. 24, 2020), review denied (Feb. 10, 2021), quoting Rappleyea v. Campbell (1994) 8 Cal.4th 975 [quotation marks, brackets, and ellipses omitted].) “One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfair...

Excerpt: ... this in her MP&A, where she requests a new trial at 3:12, and in her proposed order which requests a new trial rather than proposing a change to an order. Defendant's Notice of Motion provides notice only of a request pursuant to §1008 and not a request for a new trial. However, courts may interpret a motion bearing one label as a different type of motion, including in the case of a motion for reconsideration being construed as a motion for a n...

Excerpt: ...n from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Fraud must be pled �...

Excerpt: ...ursuant to a Code of Civil Procedure section 998 offer (Section 998 Offer). There is, however, a dispute over the amount of fees that may be recovered by Defendant. Defendant contends she is entitled to recover $25,337.50 in fees. Plaintiff Midland Credit Management Inc. counters that Defendant should be awarded no more than $4,147.50. Using the lodestar method, the Court awards Defendant $11,450 in attorney fees. 1. Hourly Rates Defendant claims...

Excerpt: ...f's Motion for Judgment for Backpay (Motion) because “Plaintiff appears to have filed four documents containing exhibits to a declaration” without filing “the declaration itself or any other papers in support of the Motion.” As a result, the Court could “discern no basis for granting the relief requested by Plaintiff.” (June 30, 2022 Minute Order.) In apparent response to the Court's June 30, 2022 ruling on the Motion, Plaintiff filed...

Excerpt: ...al., Defendant. ELIZABETH KARNAZES; Cross‐Complainant, v. DAVID MELCHNER, JOHN J. HARTFORD, et al., Cross‐Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV458258 Assigned For All Purposes to Hon. Danny Y. Chou ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEY'S FEES AND COSTS Cross‐Defendant and Judgment Creditor John Hartford's Motion for Attorney's Fees and Costs (Motion) originally came for hearing ...

Excerpt: ...ain, et al's (Defendants) August 2, 2022 case management conference statement (CMC Statement), which summarized the case as follows: “There is a dispute concerning the actual amount owed on a loan made by [Plaintiff]. [Plaintiff] has not properly credited certain settlement payments and are seeking to foreclose on a deed of trust.” (Aug. 2, 2022 CMC Statement, ¶ 4(b).) Plaintiff contends these statements were “knowingly false” and “[De...

Excerpt: ...ourt issued a tentative ruling denying part of the Motion as moot and denying the remainder of the Motion without prejudice because of, among other things, defects in the Certificates of Merit submitted by Plaintiff. Since then, the Court has continued the hearing on the Motion three times to give Plaintiff an opportunity to correct the defects outlined in the Court's tentative ruling. Despite this, Plaintiff has simply resubmitted the Certificat...

Excerpt: ...als. In entering a judgment, the Court must find in favor of one party. Kosta, Practice Under the California Environmental Quality Act §§ 23.117 et seq. The Court finds that Plaintiffs are the prevailing party and judgment should be entered in their favor. This finding includes taking into consideration that the parties have stipulated to dismiss the second cause of action. Plaintiffs and respondent City of Pacifica apparently agree that the Co...

Excerpt: ...��) demurs to the First Amended Complaint (the “FAC”) and each cause of action therein on the grounds of (1) uncertainty and (2) failure to state facts sufficient to constitute a cause of action. As a preliminary matter, Defendant did not offer any argument or authority regarding any uncertainty in the FAC, and thus the Court overrules the portion of the demurrer made on those grounds. (See Quantum Cooking Concepts, Inc. v LV Assocs., Inc. (2...

Excerpt: ..., or alternatively, a stay of Plaintiff's action on grounds of forum non conveniens. Defendants have not met their burden of demonstrating “extraordinary circumstances” justifying dismissal of this action. Plaintiff is a California resident and Defendants have their principal places of business in California. Defendants have provided no authority supporting dismissal of an action on grounds of forum non conveniens where all parties reside in ...

Excerpt: ...tion asserts three grounds to challenge testimony that consists of multiple statements. The Court cannot discern which statements are subject to which objection. Further, Objections 2 and 3 challenge evidence supporting Bomel's Material Facts 29 and 30, which Plaintiff responds as “undisputed.” Further, the objections appear to have been waived. The challenged testimony repeats much of the material that Plaintiff moving papers submitted into ...

Excerpt: ...tion is DENIED. Defendants seek to compel a portion of this PAGA action to arbitration, pursuant to the an arbitration agreement set forth in Field Nation, LLC's “Provider Terms and Conditions.” Agreements to arbitrate are valid, irrevocable, and enforceable. (9 U.S.C. § 2.) And, when litigating parties have agreed to arbitrate a dispute, either party may petition for an order compelling the dispute to arbitration and staying judicial procee...

Excerpt: ...IE WONG. Plaintiff properly served Defendants B. CLAIRMONT, M. CLAIRMONT, and DENISE RUBEY by electronic service, pursuant to Code of Civil Procedure section 1010.6(e).) Each of these defendants is represented by counsel, and Plaintiff's counsel confirmed the validity of their respective attorneys' email addresses. Defendant YANNIE WONG is self‐represented. Section 1010.6 is silent on the subject of e‐service on unrepresented parties, other t...

Excerpt: ... PORTFOLIO SERVICING, INC. TENTATIVE RULING: Defendants' Demurrer to Plaintiff's Complaint is SUSTAINED as to each Cause of Action (“COA”) with leave to amend pursuant to Cal. Code of Civ. Proc. § 430.30(e). 1st COA – Negligence Plaintiff alleges that “On or around the year, 2007, Plaintiff via Elizabeth B. Shoaga, was approved and accepted to purchase the same property subject to the existing loan or liens or the alternative pursue a �...

Excerpt: ...e prevailing party on his anti‐SLAPP motion,” “is entitled to reasonable attorney's fees and costs incurred in establishing his entitlement to fees and costs under [Code of Civil Procedure] section 425.16, subdivision (c) and in defending the validity of his judgment for those fees and costs.” (Nov. 18, 2021 Order, at p. 6.) Thus, Hartford is entitled to recover his reasonable attorney fees and costs incurred in protecting the validity an...

Excerpt: ...n the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electr...

Excerpt: ...ve two opportunities to do so, the Court ADOPTS its October 6, 2022 tentative ruling. The Court reproduces its October 6, 2022 tentative ruling below: Plaintiff's Motion to Seal Certificates of Merit, Permit Service on Doe Defendants, Permit Plaintiff to file an Amended Complaint, and Permit Plaintiff to Proceed Under a Fictitious Name is DENIED IN PART AS MOOT and DENIED IN PART WITHOUT PREJUDICE. Plaintiff's request to seal the Certificates of ...

Excerpt: ...und in Part 2 of the Code of Civil Procedure—does not apply to this conservatorship proceeding. As this Court previously explained, “the California Supreme Court, over 80 years ago, held that a conservatorship proceeding under Insurance Code sections 1010 to 1062 is a special proceeding that is not subject to the provisions of Part 2 of the Code of Civil Procedure. (See Carpenter v. Pacific Mutual Life Ins. Co. of Cal. (1937) 1.0 Cal.2d 307, ...

Excerpt: ...h 279, 293.) However, the right depends on a timely demand; the failure to demand a jury trial t in a timely manner may constitute a waiver of the right. (Code Civ. Proc., § 631; Grafton Partners L.P. v. Superior Court (2005) 36 Cal.4th 944, 955.) Further, even if a timely demand has been made, the demanding party's failure to post jury fees before “the initial case management conference” constitutes a waiver of the right to jury trial. (Cod...

Excerpt: ...ree that the arbitration provision states that “[a]ll disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association” (AAA). As explained below, the Court denies the Motion because Petitioner has not made proper demand for arbitration as required by the parties' written agreement. A party seeking to compel arbitration pursuant to Code of Civil Procedure section 1281.2 must “p...

Excerpt: ...or before November 1, 2022. Defendants contend, first, that Plaintiff's claim is barred by the applicable statute of limitations. According to Defendants, Plaintiff's claim is subject to a 6‐month statute of limitations under CCP § 473, and a 2‐year statute of limitations under CCP § 473.5. Defendants further contend that Plaintiff's claim is subject to a 3‐year statute of limitations applicable to “An action for relief on the ground of...

Excerpt: ... a duty to meet‐and‐confer in good faith. “The statute requires that there be a serious effort at negotiation and informal resolution. . . . Argument is not the same as informal negotiation; that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his [or her] ways; and that a reasonable and good faith attempt at informal resolution entails something more than b...

Excerpt: ...pon the facts of this case. Costs of partition include “[r]easonable attorney's fees incurred or paid by a party for the common benefit.” (Code of Civ. Proc. § 874.010(a).) The Court can award attorneys' fees to a defendant who opposes partition. (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967 citing Riley v. Turpin (1960) 53 Cal.2d 598, 601‐603.) The motion is properly brought post‐judgment. (Code of Civ. Proc. §§ 874.010, 1033.5(b).) P...

Excerpt: ...ndant seeks to tax various costs identified in Plaintiff's memorandum of costs. If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Citing Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774‐776, Defendant notes that “Items that are properly objected to...

Excerpt: ...the arbitration fee provision is enforceable is immaterial because nothing in the arbitration clause suggests that attorney's fees are recoverable by either party in a civil action. The provision states, “Any arbitration award” shall include an award of reasonable attorney's fees and costs to the prevailing party. It is silent on whether fees are recoverable in a civil action. The arbitration provision has nothing to do with entitlement to at...

Excerpt: ...ty or Second Cause of Action for Negligence pursuant to Cal. Code of Civ. Proc. § 437c(p). Plaintiff's Request for Judicial Notice is GRANTED pursuant to Cal. Evidence Code §452(a), (b). Defendant's Objections Nos. 2 and 3 to the Wong Decl., ¶6, and Rencher Decl., ¶9, respectively, each relating to Exh. E in Defendant's Compendium of Evidence are SUSTAINED. Defendant's remaining objections are OVERRULED. Plaintiff's objections presented only ...

Excerpt: ...fore November 14, 2022. Defendant establishes that it properly noticed Plaintiff's deposition for August 16 and 17, 2022 at the San Mateo County Attorney's Office in Redwood City, and that Plaintiff failed to appear for her deposition. (See Cruz Decl., ¶¶ 1, 15, and Exs. A and N.) Plaintiff does not dispute that Defendant is entitled to take her deposition for two additional days, but instead argues that Defendant should only be permitted to ta...

Excerpt: ...d on posting of a $10,000 undertaking. Defendant's Evidentiary Objections Nos. 25, 26, 27, 28, 29, are SUSTAINED; Objections 30 and 31 are SUSTAINED IN PART to the extent Mr. Field describes the contents of Exhibits 3 and 4 and otherwise OVERRULED as to all other grounds; and Objections Nos. 32, 33, and 34 are OVERRULED. The moving evidence offered only an inadmissible conclusion that Windy Hill Eight was the successor to Windy Hill Two. Plaintif...

Excerpt: ... attorney's fees). Having reviewed the parties' briefing and supporting evidence, the Court finds that Plaintiff's Application satisfies the requirements of Sect. 483.010(a). Plaintiff has met its burden of showing (1) the claim upon which the attachment is based is one upon which an attachment may be issued (Defendant Li's alleged breach of the guarantee agreement), (2) Plaintiff has established the probable validity of its claim (see Code Civ. ...

Excerpt: ...ovision in the Retail Installment Sales Contract (“RISC”) entered between Plaintiff and Napa Ford Lincoln on grounds of equitable estoppel. Napa Ford Lincoln is not a party to this lawsuit. The arbitration provision states, in pertinent part: Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you an...

Excerpt: ...intiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Plaintiffs claim that Defendant is entitled to a credit in the amount of $31,259.16 for payments and the security deposit. (Plaintiffs' Sep. Statement of Undisputed Material Facts (“PSSUMF”) no. 12....

Excerpt: ...nt that ultimately could be granted approval by this Court at the final fairness hearing. Plaintiff's counsel is experienced in class litigation, the case was vigorously contested by Defendants and their experienced counsel, the settlement was reached after a mediation with an experienced mediator, and Plaintiff's counsel has provided a detailed analysis of each claim, including the strengths and weaknesses. The Court would like a further explana...

Excerpt: ...brought against the authority shall be brought in a court of competent jurisdiction in the County of Sacramento.” Plaintiff opposes the motion on the grounds that venue is proper in San Mateo County pursuant to Code of Civil Procedure § 1250.020, which provides that, with respect to actions for eminent domain, “the proceeding shall be commenced in the county in which the property sought to be taken is located,” except “When property soug...

Excerpt: ...onco Re Corporation, a California Corporation; and Bre Cameron Creek, LLC, an Arizona Limited Liability Company (the “Fair Defendants”) is ruled upon as follows: This case was assigned to the Hon. Nancy L. Fineman due to the retirement of the judge who originally decided the SLAPP motion. As directed by the Court of Appeal in Case No. A160098, the Fair Defendants are entitled to their reasonable attorneys' fees and costs. A “prevailing defe...

Excerpt: ...order this matter off calendar for noncompliance, the Court exercises its discretion to address the demurrer on the merits. The demurrer filed by MidFirst Bank is OVERRULED in its entirety. This Court believes, especially when the issue is one of law “that the integrity of the judicial process requires … [the Court] to subject every motion to review before granting it.” California Judge's Benchbook: Civil Proceedings Before Trial § 6.21 (T...

Excerpt: ...s Desikan and Sastri (buyers) purchased the property during a remodel project. Plaintiffs experienced water intrusion issues, and contacted moving party Mavrik, which had been the architect for the remodel. (6‐ 27‐22 Patadia Decl.). Mavrik worked with the buyers to remedy the water issue. The problems apparently were not resolved, and thus in June 2020, Plaintiffs (buyers) sued the Patadia Defendants (sellers), alleging defects in the home. I...

Excerpt: ...ymphony Communication Services, LLC's Second Amended Cross‐complaint is DENIED. The origins of this case trace back to a settlement agreement (the “Settlement Agreement”) entered into by Plaintiff and Defendant on August 21, 2019. The Settlement Agreement ended a 2018 case filed in this court, entitled LogiGear Corporation v. Symphony Communication Services, LLC, et al. and numbered 18CIV06464. In that case (the “Prior Litigation”), Pla...

Excerpt: ...he subject of Liberty's complaint in San Mateo County Superior Court Case number 21‐CIV‐04741 (“Lawsuit No. 1). That lawsuit alleges that Hillhouse embezzled approximately $800,000 from Liberty's defined benefit play through use of “secret electronic bank transfers,” forging Liberty's name on “business checks,” and embezzling “thousands of dollars” from Liberty's “business checking account.” The lawsuit also alleges that Hil...

Excerpt: ...iciently alleges facts to support a declaratory relief claim in that an actual controversy exists CrossDefendant and Cross‐Complainant Carl Steinke over how to distribute the proceeds from the sale of the property that are currently being held in escrow. (See C.C.P. § 1060; see also Cross‐Complaint ¶ 9.) Cross‐Defendant further has not established that this declaratory relief claim fails because the rescission claim would fully resolve th...

Excerpt: ...ichael Szelenyi and Jeffrey Wallace's 6‐21‐22 Demurrer to Cross‐ Complainants Andrew Oldham, Jennifer Siem, and Revis, Inc.'s 5‐25‐22 Second Amended Cross‐Complaint (SACC), is SUSTAINED WITH LEAVE TO AMEND as to all asserted claims. Standing/Assertion of Derivative Suit Cross‐Defendants Szelenyi and Jeffrey Wallace argue Cross‐Complainants Oldham and Siem lack “standing” to assert the SACC as a derivative lawsuit, and they dem...

Excerpt: ... complaint does not state facts sufficient to constitute a cause of action or is uncertain, inter alia. (Id., at § 430.10, subds. (e)–(f).) Defects in the notice to quit are properly challenged on demurrer. (See Borsuk v. Appellate Div. of Superior Court (2015) 242 Cal.App.4th 607, 617, fn. 7.) Here, Defendants have demurred to the Complaint on the grounds that the notice of termination of the tenancy (the “Notice”) attached to the Complai...

Excerpt: ...ed Razzaqui v. Williams, Case No. CGC‐22‐597701, to this Court (San Mateo County Superior Court) for coordination with this case. Defendants from both cases oppose the Motion, and indicate that they will file a motion to bifurcate if the two cases are joined for trial. Code of Civil Procedure section 403 authorizes a judge in one court to order a case pending in another court transferred to the judge's court if it (a) involves a “common que...

Excerpt: ...ade in good faith. In support, Myson submitted the declaration of its counsel, Gary L. Franklin. Franklin's declaration sets forth the basic facts concerning the litigation (Franklin Decl., ¶¶ 3‐9), and attaches the settlement agreement (id., ex. 1). Franklin also avers that Myson agreed to pay Plaintiff $120,000 to “buy peace,” that Myson vigorously disputes that it is in any way liable to Plaintiff, and that Myson is not insured for thi...

Excerpt: ...h November 18, 2022. This case has been assigned to the Hon. Nancy L. Fineman for all purposes and she must be the one to try the case. Accordingly, the Court VACATES the October 19, 2022 Trial and October 11, 2022 Pretrial Conference. The Court sets a Trial Setting and Case Management Conference for December 6, 2022 at 9:30 a.m. The parties are to file a Joint Case Management Conference Statement by November 29, 2022 with a trial plan, which inc...

Excerpt: ...th the Court's previous orders, failure to oppose discovery motions, and refusal to appear at scheduled hearings and conference evidences his abandonment of his case and demonstrates that no lesser sanction would be effective. FACTUAL BACKGROUND Plaintiff initiated this case on April 14, 2021, and served Defendant with the summons on April 28, 2021. (April 14, 2021 Complaint; May 3, 2021 Proof of Service of Summons.) Defendant promptly served wri...

Excerpt: ...is as follows: Petitioner Broadway West Owner's Association's (“Association”) “Petition to Reduce Voting Requirements and Approve Amendments to the Restated Declaration (Civ. Code Sect. 4275),” filed Aug. 2, 2022, is GRANTED, conditioned on correction of the typographical error in the “First Amendment,” noted below. Factual background. Petitioner is a Homeowner's Association (HOA) for an 18‐unit Condominium complex in Burlingame, Ca...

Excerpt: ...action. The alternative motion for summary adjudication of issues is GRANTED as to Issues 4, 6, 11, 12, 14, 16, and DENIED as to Issues 1, 2, 3, 5, 7, 8, 9, 10a, 10b, 13, 15, 17, and 18. Defendants' Objections 1. Supplemental Declaration of Randy Dizitser Objection 1 is OVERRULED. The Supplemental Declaration of Randy Dizitser is untimely filed, but the Court exercises its discretion to consider late‐filed papers. (CRC Rule 3.1300(d); Levingsto...

Excerpt: ... GRANTED as to Ex. A (Evid. Code Sect. 452(d), and GRANTED as to Ex. B‐C. Evid. Code Sect. 452(c). THE 4‐29‐21 SUBSTITUTE SERVICE AT DEFENDANT'S TIBURON HOME. Defendant seeks relief from the October 2021 default and default Judgment on grounds the process server's April 29, 2021 substitute service of the Summons and Complaint on a woman living in Defendant's Tiburon, Ca. home was purportedly ineffective. Defendant contends he did not receiv...

Excerpt: ... an in‐dependent contractor agreement signed in 2015 (the “2015 Agreement”). Plaintiff seeks leave to file an amended pleading instead alleging that Defendant breached it duties under insurance coverage it offered to its agents under a prior agreement dating to 2012 (the “2012 Agreement”), in addition to asserting an alternative legal theory of recovery. Defendant contends that the Complaint's allegation that the 2015 Agreement governed...

Excerpt: ... Demurrer to Plaintiffs' First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND pursuant to Cal. Code of Civ. Proc. §430.10(e). Defendants argue, inter alia, that the same defects that led the Court to grant judgment on the pleadings as to the Original Complaint are fatal to the FAC. Namely, there is no judgment entered against the Wong Estate, meaning the claim for indemnification has not ripened. Defendants further argue that the allegations...

Excerpt: ... of the Unruh Civil Rights Act (“Unruh Act”). Any violation of the Americans with Disabilities Act (“ADA”) is a per se violation of the Unruh Civil Rights Act. (See Complaint ¶ 35; see also Civil Code § 51(f).) Plaintiff alleges that the hotel's website fails to comply with the ADA under 28 C.F.R. section 36.302(e)(1)(ii) (“Reservations Rule”), and therefore violates the Unruh Act. Defendants assert that the Complaint fails to state...

Excerpt: ...s Motion to Quash (Motion) is DENIED. Discovery is RE‐OPENED for the limited purpose of allowing Plaintiff to take Rhone's deposition before October 10, 2022. The deposition may be conducted remotely. The parties are ORDERED to meet and confer on a date for Rhone's deposition. 1. Witness's Lack of Knowledge Defendants and Rhone contend the subpoena does not seek relevant information because Rhone has submitted a declaration stating that she has...

Excerpt: ... to summary judgment because “Plaintiff's failure to submit this dispute to arbitration is a complete bar to this civil action.” (MPA, at p.9) This contention lacks merit. The Loan Agreement entered into between Defendant Escandon Uniforms, Inc. (Escandon) and School Apparel, Inc. (SAI), Plaintiff's predecessor‐in‐interest, contains an arbitration provision stating that “[i]n the event of a dispute between the parties under this Agreeme...

Excerpt: ...responded. Thus there is nothing actually under oath by the Defendant. Rather, there is a court order deeming the matters admitted. Defendant has presented no case law holding that requests for admissions not filed as part of a motion for summary judgment and/or never actually admitted by the party under oath can be a matter of judicial notice for determination on the pleadings. Plaintiff cites to Evans v. California Trailer Court Inc. (1994) 28 ...

Excerpt: ...icable statute of limitations. According to Defendant, A refinance occurred on May 16, 2001 (Ex. 2) which is the same date that the Grant Deed conveying the Daly City Property to Joe and Defendant was recorded. If Plaintiff's allegation is correct, when the refinance was completed on May 16, 2001, Defendant was obligated to transfer back the property starting on May 17, 2001 and his failure to do so would be a breach of the (alleged) oral agreeme...

Excerpt: ...e of entry of the Court's order. The First Amended Complaint (the “FAC”) sets forth two causes of action for invasion of privacy by portrayal in a false light. According to the allegations of the FAC, Plaintiff is a former employee of Defendant California Casualty Management Company (“CCMC”). (FAC., p. 4.) On March 31, 2022, CCMC and its officer, Defendant Robert Nicolay, eliminated Plaintiff's position and terminated Plaintiff's employme...

Excerpt: ...t, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499‐ 500. Factual background. This case arises from a Feb. 22, 2019 auto accident near the Dumbarton Bridge in Menlo Park. As described by the parties, after Plaintiff Perry Kim Robinson's vehicle broke down, defendant CalTrans had Plaintiff's vehicle towed to a location on University Ave. in Menlo Park, near the intersection of University Ave. and Bayfront Expressway. Plaintiff all...

Excerpt: ...hird, and Ninth COA's in Plaintiff's FAC are OVERRULED. The Court in its discretion has considered Plaintiff's late‐filed Opposition. Nuffer's and Callinan's Demurrers Defendants Nuffer and Callinan argue that COA's 5‐7 in Plaintiff's FAC do not allege sufficient facts regarding the demurring Defendants' personal liability under the applicable Labor Code sections to support the causes of action at issue. In ruling on a demurrer, the Court acc...

Excerpt: ...rises out of alleged abuse suffered by Plaintiff and other students and perpetrated by Dinorah Ethel Molina, a teacher at a middle school within the defendant school district. By this Motion, Plaintiff seeks to compel Defendant's further responses to the first set of each of her Form Interrogatories, Requests for Production, and Requests for Admission. The parties should have been able to resolve many of these issues without the need for Court in...

Excerpt: ...e Motion as timely because the electronic filing stamp on the moving papers indicated Plaintiff filed the Motion on March 17, 2022—two days after the March 15 deadline. After oral argument on August 11, 2022, the Court continued the hearing to September 22, 2022, and requested additional briefing on the timeliness issue. Having reviewed the parties' Supplemental Briefs, the Court finds that the Motion was timely‐filed. Plaintiff submitted the...

Excerpt: ...V‐04521 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF GANGFENG LAI Defendant Sterling Bank & Trust, FSB's (Sterling) unopposed Motion for Terminating Sanctions Against Plaintiff Gangfeng Lai (Motion) came for hearing before this Court on September 22, 2022 at 2:00 p.m. Having considered all papers filed in support of and in opposition to the Motion, oral arguments of the partie...

Excerpt: ...the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (...

Excerpt: ... reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.A...

Excerpt: ...al investigation.” According to Defendants' Notice of Motion, “The motion is made on the ground that Plaintiff has illegally obtained certain evidence, specifically seafood and documents in violation of section 2023.010 (subd. (b)) of the Code of Civil Procedure.” NOM, p.2. Defendants, however, have provided no authority indicating that use of illegally obtained evidence constitutes a discovery violation under any part of the Civil Discover...

Excerpt: ...ff's First Amended Complaint (FAC), which was filed on April 1, 2022 in the federal district court case, SUSTAINED‐IN‐PART and OVERRULED‐IN‐PART, as set forth below. Plaintiff's 19‐page Opposition brief violates CRC 3.1113 (imposing 15‐page limit). In its discretion, the Court has reviewed and considered the excess pages. However, if Plaintiff violates page limitations going forward, the Court may strike Plaintiff's papers. Defendants...

Excerpt: ...lleged in the First Amended Complaint: (1) that these claims fail as a matter of law because the statements are not false; (2) that the alleged statements are protected by the common interest privilege under Civil Code section 47(c); and (3) that Plaintiff cannot plead special damages because the alleged special damages were caused by an unrelated event as conceded by Plaintiff's separate false light complaint. First, Defendants argue that these ...

Excerpt: ...EPOSITION AND FOR SANCTIONS TENTATIVE RULING: Plaintiffs Pacific Diversified Investments, LLC's, Texas Sugar North, LLC's, Texas Dove Cove, LLC's, Texas Cedar Ridge, LLC's, and Texas Brick Maze, LLC's Motion for Protective Order and Order Compelling Appearances for Deposition and Responses to Discovery is GRANTED in part and DENIED in part. Plaintiffs seek (1) a protective order precluding Defendant Ramson Mumba from testifying or presenting evid...

Excerpt: ...t Amended Complaint (FAC) filed on April 1, 2022 in the federal court case, is DENIED. Code Civ. Proc. Sect. 436; Civ. Code Sect. 3294. A party seeking punitive damages under Civ. Code Sect. 3294 must show, by clear and convincing evidence, that defendant is guilty of fraud, malice, or oppression. Civ. Code Sect. 3294(a). An employer may be liable for punitive damages based upon acts of an employee where the employer either had advance knowledge ...

Excerpt: ...efendant Portfolio Recovery Associates, LLC, is GRANTED as to the entire cross‐complaint and each cause of action. Code of Civil Procedure section 425.16, the anti‐SLAPP statute (“strategic lawsuit against public participation”), is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. (Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995, ...

Excerpt: ...ike was moot in light of those rulings. On August 5, 2022, the Court found that Plaintiff did not timely contest the tentative ruling or notify Defendants of his intention to contest due to Plaintiff's counsel's claimed confusion regarding the hearing date for Defendants' Demurrers and Motion to Strike, but that the parties nevertheless appeared at the hearing. Following that hearing, the Court continued the hearing on the demurrers and motion to...

Excerpt: ... in any manner connected with a judicial proceeding before it, in every manner pertaining thereto.” (Code of Civ. Proc., § 128, subd. (a)(5); see Capra v. Capra (2020) 58 Cal.App.5th 1072, 1091– 1092.) In deciding whether to disqualify an attorney, the paramount concern “must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.” (People ex rel Dept. of Corps. v. SpeeDee Oil Change Systems,...

Excerpt: ...se, in June 2008, of DeRitz, LLC, and its asset, real property located at 1528 S. El Camino Real in San Mateo. Pursuant to the terms of the Purchase Agreement, as part of the funding for the purchase of DeRitz, Plaintiffs transferred to the sellers three properties in San Mateo for the fair market value of either $1,763,891.22 or $1,764,963.74. Plaintiffs' AUMF 18. This amount should have been credited toward the purchase of DeRitz. Plaintiffs' A...

Excerpt: ...Stephen Estrella v. City of South San Francisco Code Enforcement, et al., Case No. 20CIV05257 (“Estrella”) and Norguard Insurance Co. v. CSG Consultants, Inc., et al., Case No. 22CIV00080 (“Norguard”)—both arise from an incident on January 23, 2020, in which Sean Flanagan allegedly ran over and injured Stephen Estrella's foot. Estrella initiated the Estrella matter on November 24, 2020, and filed his First Amended Complaint on December ...

Excerpt: ...all parties received notice of the motion and therefore, the Court decides the motion on the merits. The two cases—Stephen Estrella v. City of South San Francisco Code Enforcement, et al., Case No. 20CIV05257 (“Estrella”) and Norguard Insurance Co. v. CSG Consultants, Inc., et al., Case No. 22CIV00080 (“Norguard”)—both arise from an incident on January 23, 2020, in which Sean Flanagan allegedly ran over and injured Stephen Estrella's ...

Excerpt: ...dure. § 438(c)(1)(B)(ii),(h)(2). Defendants' Request for Judicial Notice is GRANTED pursuant to Evidence Code §452(d). A cause of action for defamation is established by showing the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. Gilbert v. Sykes, 147 Cal.App.4th 13, 27, citing Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th ...

Excerpt: ...This action has been consolidated with San Mateo Superior Court Case no. 21CIV05618. (See Order filed July 6, 2022 in this action.) As such, all future documents for both actions are to be filed only in this lead action (21CIV02997). The Court notes that this Demurrer was filed in 21CIV05618 prior to the Court's Order granting consolidation. (2) Demurrer to the Second Cause of Action for Negligence and Fourth Cause of Action for Negligent Inflict...

Excerpt: ...e Civ. Proc. Sect. 873.810 et. seq. As discussed below, the Court requests that the Referee prepare a revised, proposed distribution of the sale proceeds, consistent with this Order. This Court has been the single‐assigned judge in this case since December 14, 2020. It has no personal knowledge of the activities in the case before that time, but in the course of its duties has become familiar with the facts and issues in this case. Brief backgr...

Excerpt: ...ent of a strip of land located between their and Defendant's property and used by Plaintiffs as a driveway (the “Driveway Land”). Plaintiffs also seek to enjoin Defendant from opening a ‘tap room' and selling alcoholic beverages on its property. In determining whether to issue a preliminary injunction, the Court must evaluate two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the int...

Excerpt: ...ake Health Care Center (2018) 6 Cal.5th 474, 482, 483. Here, Defendant's demurrer is based in part on the argument that Plaintiff's Complaint does not include a “[t]he requisite documents in order to establish a foundation for the ownership of the subject property.” Opp. 3:5‐7. To the extent this argument is based on more than whether the landlord acquired the property at a regularly conducted sale and thereafter duly perfected its title, i...

Excerpt: ... Abrego, a Section 8 tenant, both (a) failed to pay his portion of the monthly rent (95% of which is being paid by the San Mateo County Housing Authority) for April and May 2022, and (b) permitted, in violation of the Lease, three unauthorized persons to live in the property. In the two months preceding the July 6, 2022 service of the Summons & Complaint, Defendant Abrego was served with four separate Notices from Plaintiff/landlord, stating that...

Excerpt: ...ty of San Mateo (Defendant) from 2007 to 2019 pursuant to an independent contractor agreement. (FAC, ¶¶ 6‐19.) Plaintiff alleges that “beginning in early 2019,” Defendant “began to change the terms of [Plaintiff's] employment,” which effectively changed her status from independent contractor to employee. (Id., ¶ 16.) After Plaintiff filed an EEOC Complaint against Defendant, Defendant allegedly “terminated” her. (Id., ¶¶ 19‐2...

Excerpt: ... seek any monetary relief. In her first through fifth causes of action under the Fair Employment and Housing Act (FEHA), however, Plaintiff does seek monetary relief. Although Defendant acknowledges that Plaintiff's FEHA claims are not subject to the Government Claims Act (GCA), it nonetheless argues that Plaintiff's sixth cause of action is subject to the GCA based solely on the claims for monetary relief in her FEHA causes of action. The Court ...

Excerpt: ... opposition was served. If any party has any objections to the Court considering Plaintiffs' opposition, the party shall properly contest the tentative and appear at the hearing. Cross‐Defendant County of San Mateo's motion to stay discovery as to all parties is GRANTED in part and DENIED in part for the reasons set forth below. The County filed the present motion after Defendant Blair filed his motion for a protective order or, in the alternat...

Excerpt: ...error in law, occurring at the trial and excepted to by the party making the application. (Code of Civ. Proc. § 657(6) & (7).) (Notice of Intent to Move for New Trial at 1.) A. The Order Granting Summary Judgment Was Not Against Law. A verdict or order is against law “only if it was ‘unsupported by any substantial evidence . . . .'” (Fergus v. Songer (2007) 150 Cal.App.4th 552, 567.) Defendant's motion does not argue that Plaintiff's evide...

Excerpt: ...Mr. Corrinet. Judge Fineman has been the single assigned judge on this case since December 8, 2020. The Court, after considering the record and weighing the factors, exercises its discretion to dismiss pursuant to Code of Civil Procedure §§ 583.410 et seq. and California Rules of Court rule 3.1240. The Court, therefore, GRANTS Plaintiff's motion and VACATES the trial date and all other dates. While it may be unusual to dismiss a case a day befo...

Excerpt: ...AVE TO AMEND, and SUSTAINED IN PART WITHOUT LEAVE TO AMEND. 1. Legal Standard On a demurrer, the Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App....

Excerpt: ...im's second demurrer. (See Mar. 30, 2022 Demurrer, p. 1 [“Defendants Joseph and Suzie Kim (hereafter ‘Defendants'), will and hereby do generally and specifically demurrer [sic] to Plaintiffs Carol and Charles Oushani's, [sic] Complaint”].) But subsequent demurrers are not prohibited as a matter of law. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 282 [“[w]hile it is true that no statute specifically authorizes the procedu...

Excerpt: ...nts' motion to strike references Exhibits A and B in a “Table of Exhibits.” However, it appears that no Table of Exhibits has been filed. The Court finds the meet‐and‐confer requirement satisfied. If there are future demurrers or motions to strike, Plaintiff is to follow‐up on her representation that she would respond to a request to talk on the phone to discuss the issues. Courts have construed the failure to oppose a motion as having ...

Excerpt: ... 2022 are likewise vacated. The Court sets a Trial Setting Conference for September 20, 2022 at 9:30 a.m. No statements are necessary for the Trial Setting Conference. A motion for continuance is addressed to the sound discretion of the trial court. Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395. This Court reaches its conclusion after considering all the factors and exercising its discretion. The Court starts its analysis wi...

Excerpt: .... (California Rule of Court Rule 3.1110(f)(4); San Mateo County Superior Court Local Rule 3.3.) “Rules of Court have the force of law and are as binding as procedural statutes as long as they are not inconsistent with statutory or constitutional law.” (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.) Plaintiff's Moving Request for Judicial Notice includes 10 exhibits across 100 pages. The failure to comply with Court Rules imposes an ...

Excerpt: ...‐confer requirement satisfied. If there are future demurrers or motions to strike, Plaintiff is to follow‐up on her representation that she would respond to a request to talk on the phone to discuss the issues. Courts have construed the failure to oppose a motion as having an abandonment of the claims. See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 (“Plaintiff did not oppose the County's [motion] to this portion of their seve...