Excerpt: ...orney and counsel for defendant are to APPEAR so that testimony can be provided under oath. Zoom appearances are acceptable. The parties have not complied with the Court's order denying, without prejudice, Motion to Approve PAGA Settlement and Dismissal of PAGA Action. The Court expressly required that Plaintiff posit his own declaration in support of a renewed motion and append the Confidential Settlement Agreement and Release that settled his n...

Excerpt: ...nts that they are willing to participate in ADR and are agreeable to the same ADR procedure. If so, the court may order the case referred to the court's ADR Analyst. Local Rule 3.904 further states that if a case is at issue and all counsel and self‐represented parties have indicated in their CMC statements that they are willing to participate in ADR and willing to proceed to the same ADR process, the case will be referred to the ADR department...

Excerpt: ...ty located at 567 Price Street in Daly City (“property”). The First Amended Complaint (“FAC”) alleges claims for partition and quiet title. A trial was held before Judge Buchwald, and a Statement of Decision issued on December 19, 2016. (See Sabharwal Decl., Exh. A, Statement of Decision (“SOD”).) The SOD states that the parties stipulated at trial that bank mortgage payments were paid directly to the bank by checks from Plaintiff in ...

Excerpt: ...022. Plaintiff's objections 1 through 12 to Declaration of Joshi are overruled. The motion for summary judgment filed by Plaintiff Northern California Collection Service, Inc. is GRANTED. Plaintiff's moving evidence establishes all of the elements of the Complaint, thereby meeting Plaintiff's burden. (Code of Civ. Proc. § 437c, subd. (p)(1).) The burden shifts to Defendant Darius K. Joshi to offer admissible evidence to establish that a triable ...

Excerpt: ...ted below, Defendant Tesla Energy Operations, Inc.'s Demurrer to Plaintiff's 3‐18‐22 First Amended Complaint (FAC), which is addressed only to the FAC's Second Cause of Action (alleging a violation of Bus. & Prof. Code Section 17200), is OVERRULED. Code Civ. Proc. Section 430.10(e), (f). The Section 17200 claim is not clearly time‐ barred on the face of the pleading. The Court previously granted (in part) Tesla's Motion for Judgment on the ...

Excerpt: ...ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the First Amended Complaint (“F...

Excerpt: ...quests is DENIED for the reasons set forth below. At the IDC held in this matter on February 24, 2022, the parties agreed that Defendant would serve unverified responses to Plaintiffs' discovery requests, and make an application for appointment of a GAL by March 18. The parties also agreed that Defendant would serve verifications within two weeks following the appointment of the GAL. Defendant provided supplemental unverified responses to the dis...

Excerpt: ...ntract, false claims, and unfair competition. On June 14, 2021, VLS filed its own cross‐complaint against the City for breach of contract, breach of the implied covenant of good faith and fair dealing, and claims arising under section 1983 of title 42 of the United States Code. I. BACKGROUND On December 19, 2017, after a competitive bidding process, the City awarded VLS a contract for construction of the Five Cities Lift Station, and modificati...

Excerpt: ...Partners, LLC dba Half Moon Bay Golf Links (Defendant) claims $3,619.40 in deposition costs, but has only established that it is entitled to $3,537.65, as evidenced by the invoices. (See Streza Decl., ex. B [pp. 007 to 009].) Defendant does not adequately explain the discrepancy between the invoices and the amount claimed in its Memorandum of Costs (Costs Memo). Plaintiffs have withdrawn their objections to the invoiced amount. The Court therefor...

Excerpt: ... moving party on a motion to strike attempt to speak with the party who filed the pleading. Simply exchanging emails is not enough. In this case, the declaration of counsel for Defendant does not clearly indicate whether counsel made any attempt to speak to counsel for Plaintiff. Nonetheless, the Court will consider the merits of the Motion to Strike in the interests of moving this case forward and in light of its tentative ruling below—which d...

Excerpt: ...s that the moving party on a demurrer attempt to speak with the party who filed the pleading. Simply exchanging emails is not enough. In this case, the declaration of counsel for Defendant does not clearly indicate whether counsel made any attempt to speak to counsel for Plaintiff. Nonetheless, the Court will consider the merits of the Demurrer in the interests of moving this case forward and in light of its tentative ruling below—which overrul...

Excerpt: ...al. (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.) Plaintiff Carol and Charles Oushani (Plaintiffs) allege common counts for “money had...

Excerpt: ...rs, which is 123 pages with Exhibits A through J. In violation of CRC Rule 3.1110(f) and Local Rules, the document exhibits ARE NOT BOOKMARKED. Failure to do so in the future, will result in the filed documents being stricken! The matters is in dispute appear to be Requests for Production Nos. 8 and 36. The privilege log was not presented, and thus is not in dispute. A constitutional right to financial privacy is asserted by Malaspina, but was no...

Excerpt: ...at he Plaintiff will prevail on the claim for punitive damages under Section 3294. Section 3294 requires proof of malice, oppression or fraud by clear and convincing evidence. As noted by the Opposition, this request appears to be premature given the preliminary nature of discovery taken in this case so far. Plaintiff presents no deposition testimony of any party, and no deposition testimony of any witnesses. In the moving declaration of counsel,...

Excerpt: ...13:11; 16:10‐13. The terms are not irrelevant, false or improper. Code of Civil Procedure § 436(a). The terms are relevant to the claim for punitive damages. Taylor v. Superior Court (1979) 24 Cal.3d 890, 895 (“conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.”). DENIED as to the request to strike attorneys' fees under Civil Code § 1942.4. See Snatchko v. Westfield LLC ...

Excerpt: ... causes of action, for the reasons set forth below. The rules for a demurrer are well known: In reviewing the demurrer, the Court construes the allegations liberally, reading the complaint as a whole, with a view to substantial justice between the parties. Code of Civ. Proc. § 452; Saxer v. Philip Morris Inc. (1975) 54 Cal.App.3d 7, 18. The demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but no...

Excerpt: ...ft, Inc.), and which seeks monetary sanctions against Dmarcian, is GRANTED‐IN‐ PART and DENIED‐IN‐PART, as set forth below. Code Civ. Proc. Sect. 1987.1. Plaintiff argues the two subpoenas are overbroad because they seek documents that are irrelevant, privileged and/or subject to privacy rights. Plaintiff does not argue undue burden. Dmarcian argues the requested documents are directly relevant to Plaintiff's asserted claims and Dmarcian'...

Excerpt: ...ntiff's Complaint alleges causes of action for breach of contract and common counts based on: (1) an open book, (2) an account stated, (3) money had and received, (4) goods sold and delivered, (5) money lent, and (6) money paid. However, Plaintiff's MPA in support of the motion for summary judgment attempts to demonstrate that Plaintiff has established claims for breach of contract, an open book, and an account stated. (MPA, p.3‐6) Accordingly,...

Excerpt: ...at a claim for contractual indemnity requires that a judgment in an earlier action be entered in order for indemnity to apply. Since the Complaint does not allege that a judgment in the Asian Square Action has been entered, the claim for express indemnity is premature. Plaintiffs do not dispute this. Instead, Plaintiffs argue that the “hold harmless” obligation in MSA paragraph 1.7(a) is something different from indemnity ‐‐ that “hold ...

Excerpt: ...de Civ. Proc. Sect. 430.10(e). Groeneweg's Demurrer does not dispute whether the Complaint sufficiently alleges a fiduciary duty owed to Plaintiff. (See Mot. at 10) (Groeneweg stating: “although not at issue for purposes of demurrer, Plaintiff will be unable to prove that Groeneweg owed any fiduciary duty to Plaintiff. Although Plaintiff may have sufficiently pled the existence of such a [fiduciary] relationship, the true facts show that Groene...

Excerpt: ...he same rental unit, the same defendant, and same habitability issues, indicating there are similar issues of fact,” and that both matters will involve the same expert and lay witnesses. MPA, p.3‐ 4. Plaintiffs contend that, as a result, consolidation would conserve judicial resources and reduce unnecessary costs for the parties. Although the cases involve the same rental unit, the cases involve different parties and allege different events t...

Excerpt: ...25.450; 2023.030(a). The motion to compel defendant Fernandez's deposition is GRANTED. Without discounting whatever health issues defendant may be facing, defendant has not provided sufficient evidence establishing that he is unable to sit for a deposition. This case is 1½ years old. The right to depose an adverse party is a basic discovery right. The need for a translator is irrelevant; one can be provided. Breaks can be taken, if needed. Plain...

Excerpt: ...; RAHIM AMIDHOZOUR, AN INDIVIDUAL; AMIDI, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY TENTATIVE RULING: Defendants' motion to compel compliance with subpoena to Law Office of Camelia Mahmoudi is granted as to Document Categories (j) and (k). The motion is denied as to all other categories, without prejudice to propounding a more specific subpoena. A. Objections to a Subpoena Do not Require a Privilege Log. The Code of Civil Procedure contains no ...

Excerpt: ... to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “ ‘[T]he defendant has the initial burden to show that undisputed facts support each element of the affirmative defense . . . .' ” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289‐290.) If the defendant carries that burden, it “causes a shift, and the opposing party is then subject to a burden of production of [its] own to make a prima facie show...

Excerpt: ...overy Bank may be a necessary party to this action pursuant to Code of Civil Procedure § 389. Plaintiff alleges that “In or around February 26, 2020, Discovery Bank obtained a Judgment against [Defendant] Joel and placed a lien on 416 SAN DIEGO.” Complaint, ¶ 13. Plaintiff's prayer for relief asks, among other things, “For title of the Property to be vested in the Plaintiff as of the death of Joe Durham in 2010; . . . For a constructive t...

Excerpt: ...llenge those paragraphs on the basis that that a fee award against her agent/employee co‐Defendants might flow to her. GRANT as to paragraphs 55, 78, 91, 100, and 117. The only contracts at issue are (1) the Lease between Plaintiff and Defendant Giannoni and (2) Asset Purchase Agreement between Plaintiff and Mr. Shinn. Neither of those agreements contains a provision for attorney's fees to a prevailing party in an action arising from the agreem...

Excerpt: ...ris Inc. (1975) 54 Cal.App.3d 7, 18. A. First Cause of Action (Breach of Contract) Defendant Giannoni's demurrer to the first cause of action is OVERRULED. The “condition precedent” argument is misplaced. Defendant's written consent is a condition to Plaintiff's assigning or subletting the premises. It is not a condition precedent to any alleged contract obligation that was allegedly breached. The alleged breach pertains to Lease paragraph 36...

Excerpt: ...RANTED. Code Civ. Proc. Sect. 340.1(m)‐(o). On May 9, 2022, the Court heard oral argument pertaining to this motion and continued the hearing to permit the parties to submit supplemental briefing on the issues presented. Having reviewed the entirety of the record, including the supplemental briefs dated 5‐20‐22, 5‐27‐22, and 6‐1‐22, and the Certificates of Corroborative Fact lodged with the Court under seal on 3‐1‐22, the Court ...

Excerpt: ...paid, an open book, and an account stated. To prevail on a cause of action for breach of contract, Plaintiff must prove (1) the contract, (2) Plaintiff's performance of the contract or excuse for nonperformance, (3) Defendant's breach, and (4) resulting damage to Plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; CACI 303) Plaintiff has provided evidence establishing each of these elements through the declaration of Evelyn J. Sican...

Excerpt: ...aintiffs' motion does not include a copy of the proposed Fifth Amended Complaint. The supporting declaration states that redlined and clean copies of the proposed pleading are attached as Exhibits A and B, but neither of those exhibits is attached to the declaration. Further, Rule 3.1324(a) requires that the motion must state what allegations are proposed to be deleted or added. The motion fails to comply with this requirement. The moving Points ...

Excerpt: ... of Pendency of Action is ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the Fir...

Excerpt: ... when Defendant “received” the invoice at issue. Defendant's objections to paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 17, and Exhibit F and J are overruled. Defendant's objection to Plaintiff's Request for Judicial Notice of an Order from a Santa Clara County Superior Court in Murrain v. Tesla, No. 18CV 334861 is sustained. The Court notes, however, that its ruling on this motion would be unaffected if the challenged evidence were o...

Excerpt: ...rney fees only when authorized by contract or statute. (Code Civ. Proc., §§ 1021 & 1033.5, subd. (a)(10).) TEN6's First Amended Cross‐Complaint (FACC) does not seek attorney fees pursuant to contract. Rather, it seeks fees pursuant to Code Civ. Proc. section 1021.5. The Court previously struck TEN6's request for attorney fees in the original Cross‐Complaint, which also sought fees pursuant to Code of Civil Procedure Section 1021.5. (See Jan...

Excerpt: ...right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” In ruling on an anti‐SLAPP motion under this section, the Court engages in a two ‐step process. “First, the court decides...

Excerpt: ...s (TEN6) First Amended Complaint (FAC) (Demurrer) is OVERRULED. In the Demurrer, Genesys only challenges TEN6's third cause of action for violation of the Unfair Competition Law (UCL), Bus. & Prof. Code, § 17200, et seq. Citing this Court's previous order sustaining its demurrer to the UCL cause of action and Linear Technology Corp. v. Applied Materials (2007) 152 Cal.App.4th 115 (Linear), Genesys contends TEN6 failed to cure the defects in its ...

Excerpt: ...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.) A demurrer does not lie to only part of a cause action. (See Daniels v. Select Portfolio Servicing, ...

Excerpt: ...uit against Defendant Jim Khorge for breach of a contract (Promissory Note) that contains an attorney's fees clause. The Arbitrator found in favor of Plaintiff Dan Khorge on the breach of contract claim, and Judgment has been entered in favor of Plaintiff Dan Khorge. (1‐4‐22 Clerk's Judgment). Accordingly, the Court finds that Plaintiff Dan Khorge is the prevailing party on his claim for breach of contract, and is entitled to recover his reas...

Excerpt: ...o Rodriguez, was entered into in good faith. The Court, in exercising its discretion after reviewing the record and weighing the Tech‐Bilt factors, finds that the settlement was entered into in good faith, and thus the Motion is GRANTED. Code Civ. Proc. Sect. 877.6; Tech‐Bilt, Inc. v. WoodwardClyde & Associates (1985) 38 Cal.3d 488, 499‐500. As the party challenging the settlement, defendant Transmetro has the burden of showing the settleme...

Excerpt: ...terial breach of the parties' arbitration agreement pursuant to Code of Civil Procedure §§ 1281.97 and 1281.99. As a preliminary matter, Plaintiff's counsel is reminded to comply with California Rules of Court and Local Rules of Court regarding electronically filed documents. Specifically, exhibits must be bookmarked. (CRC Rule 3.1110(f)(4) [“electronic exhibits must include electronic bookmarks with links to the first page of each exhibit an...

Excerpt: ... Case Management Conference Statement that there was a settlement, but no dismissal has yet been filed. Therefore, the Court reposts the tentative posted on May 2, 2022 as the tentative for the June 7, 2022 hearing: The Hon. Nancy L. Fineman discloses that she previously had a financial interest in American Express Company (AXP), which may be a related company to plaintiff American Express National Bank. All of her interests in American Express C...

Excerpt: ...filed on September 6, 2018. Since that date, Plaintiff has not filed a proof of service establishing that the summons and complaint were served on Defendants. When the summons and complaint is not served within the three‐year period, CCP § 583.250 provides that the court shall dismiss the action. This requirement is mandatory and is not subject to extension, excuse or exception except as expressly provided by statute. Plaintiff bears the burde...

Excerpt: ...ollows: The Motion for Summary Judgment is DENIED. The Motion addresses only the open book account and account stated claims, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff fails to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account claim is GRANTED. Plaintiff presents evidence to establish all the el...

Excerpt: ...ary judgment shall be granted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Code Civ. Proc. Sect. 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or there is a complete defense to that cause of...

Excerpt: ...on). The first cause of action alleges that Defendant made statements to Peters, which induced Peters to not pay Plaintiff, which forced Plaintiff to sue Peters. Since the Complaint does not allege any representation made to Plaintiff, the Complaint does not allege a claim for intentional misrepresentation. However, a Complaint may survive a motion for judgment on the pleadings if it alleges any cause of action, despite the title of the claim. He...

Excerpt: ...an be granted. The gravamen of Plaintiff's Complaint arises out of an alleged August 21, 2014 overcharge on Plaintiff's real estate loan from Defendant Bank of America. Complaint, ¶¶ 5‐14. Each cause of action relates to that event and is supported only by those factual allegations. Although the first cause of action alleges that the breach of contract began on a date to be determined after February 15, 2019, this conflicts with the prior all...

Excerpt: ...ion. (Soloway Decl., ¶7.) The FAC was served on January 18, 2022. (Id., ¶8.) The parties later disagreed about what the proper date for service was, with Defendants contending that February 22, 2022 was the proper date based on an extension of time to file due to electronic service. (Id., ¶¶13, 14 & Exs. 10, 11.) Defendants attempted to file their demurrer and special motion to strike on February 22, 2022, but the filing was rejected the foll...

Excerpt: ... account stated and open book account. It alleges the following facts: (1) third‐party Comenity Bank issued a credit account to Defendant Marjorie Anunciacion; (2) Defendant used, or authorized the use of, the credit account to make purchases and/or transactions; (3) Defendant received periodic billing statements for the credit account; (4) Defendant defaulted in making the required payments; and (5) Plaintiff was assigned and transferred all r...

Excerpt: ... to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit”]; San Mateo County Superior Court Local Rule 3.3 [same].) “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 Request for Judicial No...

Excerpt: ...AINTIFF ATTORNEY OF RECORD FOR FILING A WRONGFUL WRITE OF ATTACHMENT, PROTECTIVE ORDER AND SHERIFF LEVIES WITH PREJUDICE WITHHOUT LEAVE TO AMEND TENTATIVE RULING: For the reasons stated below, Defendant Gus Williams' Motion for Reconsideration, filed 3‐10‐22, is DENIED. Code Civ. Proc. Sect. 1008. Background. On 11‐19‐21, the Court granted Plaintiff's Application for a Writ of Attachment and a Temporary Protective Order (“TPO”), in wh...

Excerpt: ...ded to Plaintiff under the Act. (See Civ Code, § 1794, subd. (d).) As a result, Plaintiff has filed this Motion, seeking an award of attorney fees and costs in the amount of $228,872.34 based on the lodestar amount and a 1.5 multiplier. Defendant does not dispute that Plaintiff is entitled to recover fees and costs but counters that the lodestar amount is inflated and that the Court should award a negative 0.2 multiplier. The Court agrees that s...

Excerpt: ...e neglect under Code of Civil Procedure section 473, subdivision (b). According to Defendant, he was not aware of these proceedings because he did not receive a copy of the Complaint. (Corrected Chin Decl., ¶ 5) In light of statements set forth in Defendant's declaration, the Court finds that his motion should be granted pursuant to Code of Civil Procedure section 473.5. That section provides that “When service of a summons has not resulted in...

Excerpt: ...o evidence was presented by moving party of any signed acknowledgment or other document proof that Ponder ever saw or signed any arbitration agreement. Ponder provided a declaration stating that she never saw nor signed any arbitration agreement. Defendant argues that according to their Human Resources business practices, Ponder should have been given an arbitration agreement and that she would have been required to sign it – with the written p...

Excerpt: ...lely to an allegedly improper transfer of funds from Plaintiff Standard Fiber Investors, LLC to Defendant Gross & Rooney in December 2019. FAC, ¶¶ 16, 23. Plaintiffs now seek leave to file a Second Amended Complaint to add causes of action against a newly identified Defendant, Interiorworx, LLC, relating to two transfers of funds from Plaintiff SFI to Interiorworx in 2014 and 2016. Plaintiffs' counsel states in his declaration that allowing ame...

Excerpt: ...3) 218 Cal.App.4th 1079, 1102. Defendant's Demurrer to Second Amended Complaint is SUSTAINED WITH LEAVE TO AMEND as to the Eighth Cause of Action for Wrongful Eviction, and is OVERRULED as to the Ninth Cause of Action for Declaratory Relief. The Second Amended Complaint does not allege that Plaintiff has vacated the property, which is an essential element of a wrongful eviction claim. Ginsburg v. Gamson, (2012) 205 Cal.App.4th 873, 900. Defendant...

Excerpt: ...not filed until more than two years later on July 30, 2021. The Judicial Council adopted California Rules of Court, Emergency Rule 9 though. Rule 9 tolled statutes of limitations for civil causes of action from April 6, 2020 until October 1, 2020. When the six‐month period set forth in Rule 9 is taken into account, Plaintiff's Complaint was timely filed on July 30, 2021. The Court also notes that the motion is procedurally improper. The Court's...

Excerpt: ...and 50.2 within fourteen (14) days of notice of the Court's order. The request to provide further responses to Interrogatory No. 50.5 is DENIED. Interrogatory No. 12.1 seeks information regarding the identity of witnesses to, or persons with knowledge of, the events in question. In response, Defendant identified “All persons listed within documents provided by MUMBA in response to Plaintiff's First Request for Production.” Mr. Mumba's respons...

Excerpt: ...entitling plaintiff to judgment on the cause of action].) The Complaint alleges six causes of action, but Plaintiff's Separate Statement only addresses five causes of action. Specifically, the Separate Statement fails to address Plaintiff's Second Cause of Action for Breach of Implied in Fact Contract. A separate statement in support of a motion for summary judgment must identify each cause of action and each supporting material fact claimed to b...

Excerpt: ...ANTS Defendant's request as to item 8. The unopposed demurrer by Defendant City of Burlingame to Plaintiff's “Case Management Conference Statement and First Amended Complaint” is SUSTAINED WITHOUT LEAVE TO AMEND. The Court sustained Defendant's demurrer to the original pleading on two grounds. First, the government claim attached to the Complaint showed that Plaintiff did not file the claim within six months of the accrual of her cause of act...

Excerpt: ... Serramonte (“Defendant”) for Failure to Arbitrate, is DENIED. On November 21, 2019, the parties entered into a “Stipulation To Submit This Matter To Binding Arbitration” (“Stipulation”). (Liberty Decl., Exh. 1.) The Stipulation was approved by the Court on November 22, 2019 (“Order”). (Ibid.) Plaintiff brings this Motion contending that Defendant failed to participate in binding arbitration pursuant to the Stipulation and Order. ...

Excerpt: ...tract Plaintiff alleges that Defendant “breached the contract in violation of Section 4 Subsection 2 of the Terms of Use, Section 12 Subsection 2 of the Advertising Policies, and Section 7 Subsection e of the Facebook Platform Terms by cancelling Plaintiff's account when Plaintiff had done nothing to merit such cancellation.” SAC, ¶12. Section 4 Subsection 2 of the Terms of Use provides, in relevant part: If we determine that you have clearl...

Excerpt: ...D DEBORAH CHANG REVOCABLE TRUST; and DOES 1‐20, incluaive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 22‐CIV‐00022 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING APPLICATION FOR PRELIMINARY INJUNCTION Plaintiff Pacific Gas and Electric Company's (PG&E) Application for Preliminary Injunction re: Court's Order to Show Cause (Application) came for hearing before this Court on May 19, 2022 at 2:00 p.m. All parties appea...

Excerpt: ... the Court takes judicial notice of the pleadings and docket in that case, which both parties have referenced in their papers. (See Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343 [when ruling on a demurrer, a court may take judicial notice of the plaintiffs' prior pleadings and positions in the same action as well as those from prior lawsuits].) The parties appear to agree that the statute of limitations governing Plaintiff...

Excerpt: ...nd denied as to RFP Nos. 7, 12, 13, 17, and 18. As a threshold matter, Defendant has waived her objections to the RFPs. Plaintiff's RFPs, Set One were served on July 29, 2021 with responses due on October 1, 2021. (Achermann Decl., ¶ 3.) Defendant did not, however, serve her responses on October 1, 2021, and no extension of time to respond was sought by Defendant. (Id., ¶ 4.) Instead, Defendant served her responses on November 5, 2021, 35 days ...

Excerpt: ...e neglect under Code of Civil Procedure section 473, subdivision (b). According to Defendant, he was not aware of these proceedings because he did not receive a copy of the Complaint. (Corrected Chin Decl., ¶ 5) In light of statements set forth in Defendant's declaration, the Court finds that his motion should be granted pursuant to Code of Civil Procedure section 473.5. That section provides that “When service of a summons has not resulted in...

Excerpt: ...denying Shaw‐Owens' motion to vacate judgment pursuant to Code of Civil Procedure Section 473(d) (arguing Shaw‐Owens was never personally served with the Summons and Complaint, and thus the default Judgment is “void” under Sect. 473(d)). With the prior motion having been denied, Defendant asks the Court to set the Judgment aside on equitable grounds, after the time limit for seeking relief under Sect. 473 has elapsed. Although the Court h...

Excerpt: ...ndant argues that the amount awarded by the default judgment exceeds the amount sought by Plaintiff's Complaint. Taking judicial notice of the Complaint filed August 14, 2008 as a record of this Court pursuant to Cal. Evidence Code §452(d), it seeks damages in the principal sum of $ 16,918.02, plus interest thereon at the rate often percent (10%) per annum from October 19, 2007, and reasonable attorney's fees and costs. These damages pleaded in ...

Excerpt: ...aintiff's first cause of action. Plaintiff has explicitly pleaded violation of Civil Code Sections 2924 et seq. Plaintiff is not seeking to enforce Civil Code Section 2924m as a private cause of action – on the contrary, Plaintiff is alleging that Section 2924m does not apply; and it is Defendant that is asserting application of Section 2924m. Plaintiff has adequately alleged that Plaintiff was the highest bidder at auction, and entitled to the...

Excerpt: ...o the Complaint is SUSTAINED WITH LEAVE TO AMEND as to the cause of action for breach of oral contract, and is otherwise OVERRULED. Defendant's Request for Judicial Notice is GRANTED as to Exhibits B, C, D, E, F and H. The Court may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached, in the documents such as orders, statements of decision, and judgments, but it cannot take j...

Excerpt: ...ense counsel's declaration. However, it appears to the Court that the issues regarding “Enhanced Remedies—Willful Misconduct” and the unfinished sentence in paragraph 68 should have been resolved in a meet‐and‐confer process. It appears to the Court that the section entitled “Enhanced Remedies— Willful Misconduct,” which starts at paragraph 69 of the Complaint is meant to be an additional cause of action for intentional conduct. T...

Excerpt: ...ity”) is illegally collecting a Utility User Tax because the City Council failed to make the findings every two years required by the measure which enacted the tax that the utility tax is necessary for the financial health of the City. On calendar are multiple dueling motions regarding the scope of discovery, specifically depositions, that plaintiff may take in this case. Plaintiffs have filed motion to compel certain depositions and the City h...

Excerpt: ... Settlement is tentatively ruled upon as follows. This Court GRANTS preliminary approval of the Settlement as set forth in the First Amended Joint Stipulation and Settlement Agreement attached as Exhibit 4 to the Declaration of David Bibiyan (“Bibiyan”). On February 3, 2022, this Court filed a written order denying preliminary approval without prejudice and identified issues that the Court wanted addressed. On March 7, 2022, Plaintiffs filed ...

Excerpt: ...prejudice and has not misled the other side, even if the request is delayed, the liberal policy of allowing amendments prevails and it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. Higgins v. Del Faro (1981) 123 Ca1.App.3d 558, 564‐565. “The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: ‘If the motion to amend is timely made and the grantin...

Excerpt: ...Orders Determining Claims of Exemption and Order to Liquidate Securities, is DENIED. Plaintiff fails to establish that the Renewed Judgment is void. Plaintiff contends that the Renewed Judgment entered on August 18, 2021 is void because it was not entered within ten years of the Judgment. Plaintiff claims Judgment was entered on August 12, 2011. As support, Plaintiff relies on a comment entered in the Court's docket on August 12, 2011 that judgme...

Excerpt: ...., Plaintiff's Statement of Additional Disputed Facts (“PF”), Nos. 20, 36‐38, 59, 62, 65‐66, 83‐91, 98. Summary judgment standard. A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. Sect. 437c(c). A defendant has met its burden of showing that a cause of action has no merit if th...

Excerpt: ...ependent claim in California for unjust enrichment. Unjust enrichment is synonymous with restitution. Levine v. Blue Shield of Calif. (2010) 189 C.A.4th 1117, 1138. The Demurrer is therefore SUSTAINED with leave to amend as to the eighth cause of action for unjust enrichment. Fraud Defendant argues that fraud is not pleaded with sufficient specificity because “Completely absent from the allegations are any affirmative statements made by Defenda...

Excerpt: ...ent. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 21‐CIV‐04140 Assigned for All Purposes to Hon. Danny Y. Chou ORDER DENYING PETITION FOR REVIEW Petitioner Savannah J. Phillips was arrested for driving under the influence of alcohol (DUI). (Administrative Record (AR) 61.) Following an administrative hearing in which Phillips presented evidence, the Department of Motor Vehicles (DMV) suspended her driver's license. (AR 3.) Phillips then filed this Peti...

Excerpt: ...ant to a Retail Installment Sales Contract (Contract). (Keithly Decl., ¶ 2 & ex. A.) The only signatories to the Contract are Sunnyvale Ford and Plaintiff. (See id., ex. A.) Neither FMC nor Towne, which attempted to repair the vehicle as FMC's representative, is a signatory. (Ibid.) The Contract contains an arbitration provision, which states in relevant part that: “Any claim or dispute, whether in contract, tort, statute or otherwise (includi...

Excerpt: ...nce per se, and a survival claim. Plaintiff also seeks to add Vaishali Bhardwaj as a defendant. According to the declaration of Plaintiff's counsel, further investigation revealed additional facts relevant to the Complaint after counsel substituted into this case in September 2021. Sachs Decl., ¶ 4. Requests to amend are to be liberally granted. Nestle v. City of Santa Monica (1972) 6 Ca1.3d 920, 939. When amendment would not prejudice and has n...

Excerpt: ...cal Rule 3.403 for the April 19, 2022 hearing. The Court SUSTAINS without leave to amend Defendant Twitter, Inc.'s demurrer to the complaint. The Court GRANTS Defendant's Request for Judicial Notice: Pursuant to Evidence Code §452(d), the Court may take judicial notice of court records, but only as to the fact that these documents were filed in the federal court in a case by Plaintiff against Defendant and not the contents therein, which are hea...

Excerpt: ...e motion to compel Plaintiff to sign a release authorizing production of cell phone records on October 15, 2020. Yakubova Decl., ¶3. Plaintiff argues that while the parties did attend an IDC, that was for disclosure of records for Plaintiff's phone number (650) 518‐ 4905, and did not concern the release of records associated with the phone numbers which are subject to the present motion, [650‐630‐7711; 650‐ 267‐9474; 650‐278‐0531; ...

Excerpt: ...Court's task is to determine whether the Certificates (under seal) contain “one or more facts corroborative of one or more of the charging allegations against a defendant or defendants . . . .” (Code of Civ. Proc. § 340.1, subd. (m)(1).) Plaintiff's Certificate of Corroboration as to Defendant Doe 2 sets forth facts describing Plaintiff's attendance at Doe 1 recreational activities, where Plaintiff was supervised by Doe 2. The Certificate de...

Excerpt: ...NED WITHOUT LEAVE TO AMEND. Defendants demur to the Second Cause of Action for Tortious Interference with Contractual Relations and the Third Cause of Action for Intentional Interference with Prospective Economic Advantage on the ground that Plaintiff failed to state facts sufficient to support a claim. The Court agrees. “California recognizes a cause of action against noncontracting parties who interfere with the performance of a contract. ‘...

Excerpt: ...ments or the matters asserted therein, pursuant to Evidence Code section 452(h). First, Defendants fail to establish that the Complaint is barred by the statute of limitations under Commercial Code section 3118(b). This statute of limitations provides that “if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note shall be commenced within six years after the demand.�...

Excerpt: ... against Defendant Social Concepts Inc. is GRANTED. The Court GRANTS Plaintiff's and Defendant's Requests for Judicial Notice. Document Request Defendant has withdrawn its attorney‐client and work product objections. Declaration of Donald F. Drummond in Opposition to Motion to Compel and in Support of Motion for Protective Order ¶ 3. The Court overrules the objection that the request seeks documents that are not material or reasonably calculat...

Excerpt: ... about January 10, 2022. Plaintiff American Express Bank's Motion for Summary Judgment, filed 1‐11‐22, is GRANTED. Code Civ. Proc. Sect. 437c. Plaintiff's alternative Motion for Summary Adjudication is therefore DENIED AS MOOT. Having reviewed the parties' briefing and evidence, the Court finds that Plaintiff met its initial burden of presenting evidence demonstrating that Defendant Lilia Rodriguez: (a) entered into a credit card agreement wi...

Excerpt: ...) First, the court determines whether plaintiff may bring the action and force the claimants to interplead. (Id. at 1126‐1127.) Second, if it is so determined, then the court discharges plaintiff and then determines the rights of the various claimants to the property deposited with the court. (Id. at 1127.) Plaintiff presents evidence to support that it is a mere stakeholder that has no interest in the $64,500 funds that it seeks to interplead,...

Excerpt: ...ving reviewed the parties' briefing, the Court finds Plaintiff's meet and confer efforts have been sufficient and therefore addresses the merits of their discovery dispute. As to Special Interrogatory No. 14, the motion is GRANTED. That Interrogatory asks GM to identify the persons who performed warranty repairs on Plaintiff's vehicle. While the service advisors identified by GM appear to be responsive and helpful, the identity of the service tec...

Excerpt: ...o a party in time to defend against the action and a default has been entered. (Code Civ. Proc., § 473.5.) Defendant's motion under this section has been timely brought. (See id., § 473.5, subd. (a).) Defendant also establishes that his lack of actual notice was not based on his avoidance of service or inexcusable neglect. (See Def. Decl.) Defendant has therefore established that he is entitled to relief under Code of Civil Procedure section 47...

Excerpt: ...ded $900 in filing fees from San Mateo Superior Court Case No. 19PRO00851 (hereinafter, the Probate Action). Defendant provides no authority to support an award of costs incurred in the Probate Action in this independent civil action. Indeed, nothing, including this Court's ruling on this Motion, appears to preclude Defendant from seeking these costs in the Probate Action, and Defendant does not argue otherwise. Therefore, the $900 in costs incur...

Excerpt: ...tion to strike the “conspiracy” allegations from the SAC, Para. 50 and 51, is DENIED. The motion argues the conspiracy allegations are improper because the SAC does not properly plead fraud or elder abuse against the Luthra Defendants. It also argues the Luthras owed no “duty” to the Plaintiff, and therefore, cannot be held liable for “conspiracy.” The authority cited for that proposition, however, appears distinguishable. The Court i...

Excerpt: ...mur to the SAC's First, Second, Fourth, and Fifth Causes of Action (alleging “cancellation of instruments,” fraud, financial elder abuse, and violation of Bus. & Prof. Code Sect. 17200). The SAC generally alleges that the Luthra Defendants, together with the Love/Williams/Omega Defendants, participated in a fraudulent scheme/plan to damage Plaintiff by arranging a purchase of Plaintiff's Millbrae property in which (a) all Defendants would rec...

Excerpt: ... on failure to state facts sufficient to support this claim. Government Code section 835 provides for liability of a dangerous condition of public property by a public entity. First, the County asserts that Plaintiffs has not pled facts to support its liability under either section 835(a) or (b). Plaintiffs allege facts sufficient to support that the County had actual notice under section 835(b) to support this claim though. In order to sufficien...

Excerpt: ...ories (General), Form Interrogatories (Employment), and Special Interrogatories, filed 1‐27‐22, which includes a request for monetary sanctions against Plaintiff and Plaintiff's counsel, is GRANTED‐IN‐PART and DENIED‐IN‐PART, as set forth below. Defendant's requests for monetary sanctions is DENIED. Local Rule 3.700(f) states: Tolling of Deadline to File Motion. Pursuant to [CCP] 2016.080(c)(2), the time for bringing any motion to com...

Excerpt: ...were survivors of persons who were killed in Israel by members of Hamas. The plaintiffs alleged that Facebook was liable for “giving Hamas a forum with which to communicate and for actively bringing Hamas' message to interested parties.” Like Plaintiff Forrest, the plaintiffs in Force alleged that Facebook “does not act as a publisher,” because “it uses algorithms to suggest content to users, resulting in ‘matchmaking.'” The Court o...

Excerpt: ...irst Amended Complaint (“FAC”) by Plaintiffs Standard Fiber Investors, LLC (“SFI”) and Standard Fiber, LLC (“SF”), is ruled on as follows: (1) Before reaching the merits of this Motion, the parties disagree on whether Utah or California law applies to the claims alleged in the FAC. Defendants claim that Plaintiffs have admitted that Utah law controls with regard to ownership of the funds because the account is located in Utah, but Def...

Excerpt: ...provides compelling evidence contradicting Plaintiff's position regarding former Harmonize employee Sylvain Ntwali's alleged access of documents and information contained in Exhs. NN, OO, PP, and YY that Plaintiff claims as trade secrets in September 2021. Zhao Decl. at ¶¶49‐53. Additionally, the Cashman Decl., Exh. 1, casts a different light on the “Harmonize Sales Pipeline” document that Defendants maintain is evidence of improper acces...

Excerpt: ...ce of Administrative Hearings and Department of Developmental Services and Real Party in Inter Golden Gate Regional Center (“GGRC”), which denied that she was eligible for services under the Lanterman Developmental Disabilities Act. On February 4, 2022, Vivian filed her opening brief, on March 4, 2022, GGRC filed its opposition brief, and on March 21, 2022, Vivian filed her reply brief. The parties filed a Joint Submission of Record. PROCEDUR...

Excerpt: ...s. Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. Finley and McGuire, California Summary Judgment and Related Termination Motions |August 2021 Update, § 2:63, citing Kim v. Reins International California, Inc. (2020) 9 Cal. 5th 73. It is undisputed that the California State Personnel Board (SPB) issued an order on December 13,...

Excerpt: ...a case by Plaintiff against Defendant and not the contents therein, which are hearsay in the present action. “The court cannot accept as true the contents of pleadings … in the other action just because they are part of the court record of file. Such documents are inadmissible hearsay in the present case.” Weil & Brown, Cal. Practice Guide, California Civil Procedure Before Trial (TRG 2021) ¶7:15.1, citing Day v. Sharp (1975) 50 Cal.App.3d...

Excerpt: ... the attorney's client and the third party, the disclosure must be reasonably necessary to achieve the purpose for which the attorney was retained, and the disclosure must have been with a reasonable expectation that the disclosed material remain confidential. 1. The Parties Must Have a Common Legal Interest. “Common interest” has never been defined, but cases imply that it means more than “common goal” or “common hope.” Instead, it m...