Excerpt: ... that “the Premises is not subject to the just‐cause nor relocation assistance requirements contained in Civil Code section 1946.2 because of Landlord's compliance under Civil Code section 1946.2(e)(8).” Complaint, Ex.2, p.1. According to Defendant, however, the Notice violates the Act because “Plaintiff has never provided Defendant with written notice that the Premises is exempt from the TPA,” as required under Civil Code § 1946.2(e)(...

Excerpt: ...proposed Cross‐Complaint is compulsory because the causes of action arise out of the same transactions or occurrences as the causes of action in the Complaint. (See C.C.P. § 426.10(c); see also ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 82‐84.) The allegations in the proposed Cross‐ Complaint concern Plaintiff Mehrdad Elie's (“Plaintiff”) investment for which Defendants claim Plaintiff is improperly d...

Excerpt: ... 2023.030 BY DEFENDANTS HAYLEY ZEMEL AND ERIK VAN WALDEN TENTATIVE RULING: Defendants' unopposed motion to compel further responses to form interrogatories, special interrogatories, requests for admission, and requests for production is GRANTED, in part, and DENIED, in part, for the reasons set forth below. Defendants' motion to compel Plaintiff's attendance at an oral deposition is DENIED without prejudice to Defendants' ability to re‐notice P...

Excerpt: ...d have been filed as separate documents. (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2021) § 7:162.1.) Therefore, Defendant is advised to do so in the future. The Demurrer to the Exemplary Damages Allegations is OVERRULED. Defendant contends the Exemplary Damages Attachment fails to state facts sufficient to constitute a cause of action. However, this Attachment only seeks additional damages (see Compl., Exempl...

Excerpt: ...te documents. (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2021) § 7:162.1.) Therefore, Defendant is advised to do so in the future. The Demurrer to the Exemplary Damages Allegations is OVERRULED. Defendant contends the Exemplary Damages Attachment fails to state facts sufficient to constitute a cause of action. However, this Attachment only seeks additional damages (see Compl., Exemplary Damages Attachment) and...

Excerpt: ...stablishing that it is entitled to summary judgment. Plaintiff's Motion for Summary Adjudication to the open book account claim is GRANTED. Plaintiff presents evidence to establish all the elements of an open book account claim for $2,884.84. (See Plaintiff's Statement of Undisputed Material Facts nos. 1, 3, 4, 6, 7; see also Dorr Decl. ¶ 11.) Defendant Michael Delacruz failed to oppose this motion, and therefore fails to raise a triable issue o...

Excerpt: ...d March 21, 2022 has the Court making a finding that the Settlement was entered into in good faith pursuant to Code of Civil Procedure § 877.6, proposed order at 2, when the memorandum of points and authorities does not discuss any of the factors that the Court must consider under Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488, to find a good faith settlement. Background This is a PAGA and putative class action regarding ov...

Excerpt: ...teenth affirmative defense provides: “As a separate and affirmative defense, defendants contend that plaintiffs' complaint, each cause of action thereof and/or remedies sought are barred by the doctrine of estoppel.” SAA, ¶ 14. As noted by Plaintiffs, the answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” Weil & Brown, Cal. Prac. Guide Ci...

Excerpt: ...dens recorded 1‐31‐22. As alleged in the Complaint and not disputed, BG purchased the property in foreclosure. Plaintiffs' Complaint does not name BG as a defendant. There is no allegation BG is related to the named defendants, or that BG engaged in any wrongdoing relating to the sale. BG is merely the buyer. BG intervened in the case for purpose of filing the present motion to expunge the lis pendens. The parties dispute BG's claimed status ...

Excerpt: ...eration fails to comply with section 1008 lacks merit. This is not a motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a). It is a renewed motion under subdivision (b), which requires showing “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code of Civ. Proc. § 1008, subd. (b).) In a...

Excerpt: ... Judicial Notice is GRANTED. (2) Demurrer to the First Cause of Action for Negligence, Second Cause of Action for Premises Liability and Fifth Cause of Action for Negligent Infliction of Emotional Distress by Jared is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant demurs that these claims fail because Jared has not and cannot allege compliance with the Government Claims Act. (See Defendant's Request for Judicial Notice, Exh. A.) Jared concedes in op...

Excerpt: ... 8.54(c) (“A failure to oppose a motion may be deemed a consent to the granting of the motion.”). With the possible exception of the Seventh Cause of Action (alleging fraud), all asserted claims (the First Cause of Action (professional negligence), the Second Cause of Action (negligence); the Third Cause of Action (breach of fiduciary duty), the Fourth Cause of Action (conversion), the Fifth Cause of Action (IIED), the Sixth Cause of Action (...

Excerpt: ...R REVOCABLE TRUST DATED JUNE 12, 2014 TENTATIVE RULING: Plaintiff's Motion to Compel Further Responses to Special Interrogatories is GRANTED in part pursuant to Cal. Code of Civ. Proc. § 2030.300(a). Defendants Saeed Amidi and Rahim Amidhozour are hereby ordered to produce further written, verified responses, without objections, to Special Interrogatories (Set One) number 16. Defendant Amidi, LLC is hereby ordered to produce further, written, ve...

Excerpt: ...'s Second Amended Complaint on the grounds that Plaintiff has “padded the complaint with a meritless tort claim and an unjust enrichment claim based on Defendant's counsel's communications.” MPA, p.2. Defendant notes that, “From the date of October 26, 2020 forward, the [parties'] attorneys communicated exchanging their relative positions and settlement positions as to the disputed Employment Agreement and enforceability of the document and...

Excerpt: ...p.m. Nelson Goodell appeared on behalf of Plaintiff Laura Blue. Samantha Chugh and Terry Bates appeared on behalf of Defendants. Having considered all papers filed in support of and in opposition to the Motion, oral arguments of the parties, all testimony and evidence presented at the hearing, and all other pleadings and papers on file herein, the Court DENIES the Motion. I. LEGAL STANDARD “ ‘ “To secure summary judgment, a moving defendant...

Excerpt: ...ns received or generated from November 1, 2020 to present, relating to the management” of Respondent's open spaces and the Parks and Recreation and Open Space Management Plan. Exhibit 1 to the Declaration of Scott Rennie in support of Respondent's Opposition filed January 28, 2022 (“Rennie Decl.). On March 19, 2021, Respondent informed Petitioner that it needed more time to review documents. On April 1, 2021, Respondent determined that there ...

Excerpt: ...in this case DENIES Plaintiff's motion to reopen discovery for the reasons set forth below. Plaintiff filed this action in September 2019, and the case was initially set for trial in December 2020. Due to the Covid‐19 pandemic, trial was continued to January 26, 2022. Plaintiff served an Expert Witness Disclosure on Defendants on December 6, 2022. Liang Decl.. ¶ 6; Ex. C. Plaintiff's current counsel, Sam Fareed, was substituted into this case ...

Excerpt: ...Motion tentative rulings. For the reasons stated below, having reviewed the parties' briefing and supporting evidence, and in exercise of the Court's discretion, the Court hereby DENIES Petitioners Coalition of Pacificans for an Undated Plan et. al.'s (“Petitioners”) Motion for Sanctions, filed 2‐7‐22. Code Civ. Proc. Sects. 128.5, 128.7. Petitioners seek sanctions against Real Parties in Interest Javier Chavarria (“Chavarria”) and Vi...

Excerpt: ... 439. The statutory “meet and confer” requirement requires that the party filing a motion for judgment on the pleadings must meet and confer with the opposing party in‐person or by telephone. Section 439(a)(3) requires a declaration identifying “the means by which the moving party met and conferred …” The Le Roux Declaration does not comply with the statute. Second, Plaintiff/Petitioner filed a Notice of Appeal seeking trial de novo r...

Excerpt: ...t to arbitrate these claims exists. Instead, Plaintiff claims that the arbitration agreement is unconscionable because Defendant put the onus on Plaintiff, as the employee, to opt out of the arbitration agreement. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Unconscionability has both a procedural and substantive element, a...

Excerpt: ...es of action. See Weil & Brown, California Practice Guide: Civil Procedure Before Trial §7:129 (TRG 2021) (Although leave to amend is routinely granted, it is proper to deny amendment when the complaint shows on its face that it is incapable of being amended.). After the Court sustained the Scopazzi Defendants demurrer to the Second Amended Complaint finding that there were no facts alleged which demonstrated justifiable reliance on the alleged ...

Excerpt: ... to demonstrate that there are additional facts, which would state a cause of action, the Court finds that based upon the facts previously alleged and the omissions from the original complaint, which were omitted in the First and Second Amended Complaints, further amendment would be futile. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial §7:129 (TRG 2021) (Although leave to amend is routinely granted, it is proper to d...

Excerpt: ...er properly served. Specifically, he contends he did not live at the stated Redwood City address at the time of alleged service. Defendant also contends that at the time of alleged service, he was not living with “Mary Tuiaki,” the person identified in the Proof of Service as Defendant's “co‐tenant,” to whom copies of the Summons and Complaint were allegedly handed. Defendant states he did not receive actual notice of the Judgment until...

Excerpt: ...mon counts based on: (1) an open book, (2) an account stated, and (3) goods sold and delivered. However, Plaintiff's MPA in support of the motion attempts to demonstrate that Plaintiff has established claims for (1) an open book, and (2) an account stated. (MPA, p.5‐7) Accordingly, because Plaintiff has addressed only two of its claims, Plaintiff has not demonstrated it is entitled to summary judgment. Nonetheless, the Court finds that Plaintif...

Excerpt: ...ties on July 24, 2011 and modified October 3, 2018 to include binding arbitration of any dispute. Browning Decl., ¶6, Exh. E. The Findings and Award indicate that Respondent was properly served with the Demand to Appear at Mediation and Arbitration, Notice of Demand for Arbitration, Notice to Attend Hearing, and Claimant's Arbitration Brief. Id., at item 9. It also indicates that Respondent is liable for and shall pay to Claimant compensatory da...

Excerpt: ... the matters specified in Code of Civil Procedure section 1179.11. (See Code of Civ. Proc., § 1179.11, subd. (a).) Consistent with this requirement, Plaintiff's Cover Sheet states that “Plaintiff has not received a communication from the defendant that defendant has applied for governmental rental assistance to cover the rent or other financial obligations demanded from the defendant in this action.” (Plaintiff's Mandatory Cover Sheet and Su...

Excerpt: ..., the Court granted Plaintiff's motion to deem facts admitted. As result, Defendant has admitted the following facts: (1) she applied for a credit card with Plaintiff; (2) she accepted Plaintiff's invitation to open a credit card account with the number ending in 8176; (3) she received a card with that number; (4) she received a customer agreement with the card; (5) the agreement provided that, by using the card, she agreed to be bound by the ter...

Excerpt: ...n Lei's Asset Disclosure Exhibit A containing a list of Ms. Lei's real properties in London and Macau; (2) those portions of Ms. Lei's Asset Disclosure Exhibit B, containing a list of Ms. Lei's bank or financial accounts; (3) those portions of Ms. Lei's Asset Disclosure Exhibit C, containing a list of Ms. Lei's personal property valued at over $10,000; and (4) those portions of Kei Leung's document production containing Mr. Leung's financial docu...

Excerpt: ... the complaint within ten days after this action was commenced. (See Labor Code section 2699(l)(1). The Court does not see evidence that the complaint was filed with LWDA within that ten day period. Second, the parties shall explain why they decided to have any uncashed checks escheat to the general fund rather than select a cy pres recipient whose mission is to fulfill the purposes of PAGA. Third, it is unclear the amount Plaintiff is seeking fo...

Excerpt: ...losed: Plaintiff Michael D. Liberty and I previously worked at the same law firm until Mr. Liberty left the firm over 20 years ago and were co‐counsel on at least one matter over five years ago. While we were colleagues, we socialized on occasion at firm functions. More recently, Mr. Liberty was opposing counsel on a matter I was handling just before my appointment to the bench. I do not believe I have socialized with Mr. Liberty for at least 8...

Excerpt: ... the merits at trial (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206) and (2) the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 624–625.) Mandatory preliminary injunctions are “rarely granted.” The granting of a mandatory injunction ...

Excerpt: ...e facts supporting the FAC with sufficient specificity to support a COA for fraud under the requisite heightened pleading standards. Plaintiff argues that the specific individuals at Defendant Tesla or Lux that had knowledge of or perpetrated the false statement about forthcoming title are presently unknown. In light of that information being unavailable to Plaintiff, the FAC should not be found lacking in sufficient particularity with respect to...

Excerpt: ...vide “reasonable notice in writing of his or her intent to enter and enter only during normal business hours.” Whether Plaintiff provided adequate notice of entry, however, is not a proper ground for demurrer in this unlawful detainer action. Plaintiff does not allege that the Notice to Enter provided grounds for termination of the lease. Rather, Plaintiff's Complaint is based on Defendant's alleged violation of a 3‐Day Notice to Cure or Qu...

Excerpt: ...on Subpoenas For Financial Records Of Plaintiff; Request For Monetary Sanctions Against Mercedes-Benz Financial Services USA LLC And Its Attorney Jointly And Severally In The Amount Of $3640.00. Pro Tem Judge James Fleming, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to s...

Excerpt: ... Plaintiffs reached out to Cirrus to schedule the PMQ depositions at issue on October 22 and October 29, 2021. Smith Decl., ¶ 2. Plaintiffs received no response. Id. On January 12‐13, 2022, Plaintiffs served notices for the Zoom video conference depositions of Cirrus's PMQs to take place on dates between January 31 and February 21, 2022. Id., ¶ 3. Cirrus responded that, because it was preparing for a four‐week trial beginning on February 15...

Excerpt: ...fifth, ninth, and tenth affirmative defenses is overruled. Each defense (unclean hands, waiver/estoppel, equities, respectively) allege that “Plaintiff's unauthorized draws from reVIS' corporate account contributed and/or caused considerable debt to the company leading to its demise and the damages that Plaintiff alleges reVIS has sustained.” (First Am. Ans. at 3 & 4.) Each of these defenses alleges that someone other than Defendants (i. e., ...

Excerpt: ...on for premises liability and the second cause of action for negligence, the FAC does not allege the existence of a statutory duty. A cause of action against a government entity like CalTrans must plead “every fact essential to the existence of statutory liability . . . with particularity, including the existence of a statutory duty. . . Since the duty of a governmental agency can only be created by statute or ‘enactment,' the statute or ‘e...

Excerpt: ...ber 1, 2020, Plaintiff sent the following email to Defendants, which provides in relevant part: From: Debra Myers Subject: Re: 202 14th Avenue Date: November 1, 2020 at 9:26:15 AM Good Morning Sue and Bob, […] I accept that the move is real and I will be leaving my home of 34 years. That said, I am still uncomfortable with the reason I have to leave. I have contacted a friend of mine who is a tenant rights[‘] attorney and I have attached some...

Excerpt: ...n Plaintiff, Plaintiff has disobeyed the order, Plaintiff has here been given the opportunity to be heard regarding that disobedience, and Plaintiff has not offered any explanation for that disobedience. The Court entered the following order on June 9, 2021: Defendant TESSA EVANGELINE WIGTON's motion to compel plaintiff Andrea L. Ramos to supply verified objection‐free responses to Second Special Interrogatories, First Supplemental Interrogator...

Excerpt: ...ecause she has not established that she first sought relief from the Labor Commissioner before bringing this Motion. (See Labor Code, § 98, subd. (f); see also Jones v. Basich (1986) 176 Cal.App.3d 513, 518.) Defendant seeks to vacate the judgment under Code of Civil Procedure section 473, subdivision (b) on the ground that the Labor Commissioner sent the notice of hearing and other papers to an incorrect address; thereby, depriving Defendant of...

Excerpt: ... ) ) Case No.: 19CIV02280 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING SUMMARY JUDGMENT The Motion for Summary Judgment of Defendant Ocean Colony Partners, LLC dba Half Moon Bay Golf Links (Motion) came for hearing before this Court on March 10, 2022 at 2:00 p.m. All parties appeared through their counsel. Having considered all papers filed in support of and in opposition to the Motion, oral arguments of the parties, all testimo...

Excerpt: ...INC.; AETNA HEALTH MANAGEMENT, LLC and AETNA LIFE INSURANCE COMPANY, Plaintiffs, v. THE ALLERGY AND ASTHMA CLINIC; ANDREW ENGLER, M.D., and DOES 1‐25, inclusive, Defendants. RICARDO LARA, as California Insurance Commissioner, on behalf of the Department of Insurance and the People of the State of California Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV536118 Assigned For All Purposes to Hon. Danny Y. Chou ORDER D...

Excerpt: ...HEALTH MANAGEMENT, LLC and AETNA LIFE INSURANCE COMPANY, Plaintiffs, v. THE ALLERGY AND ASTHMA CLINIC; ANDREW ENGLER, M.D., and DOES 1‐25, inclusive Defendants. RICARDO LARA, as California Insurance Commissioner, on behalf of the Department of Insurance and the People of the State of California Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV536118 Assigned for All Purposes to Hon. Danny Y. Chou ORDER DENYING DEFEND...

Excerpt: ...5, inclusive Defendants. RICARDO LARA, as California Insurance Commissioner, on behalf of the Department of Insurance and the People of the State of California Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV536118 Assigned for All Purposes to Hon. Danny Y. Chou ORDER DENYING DEFENDANTS' MOTION FOR BIFURCATION The Motion for Bifurcation (Motion) filed by Defendants The Allergy and Asthma Clinic (Clinic) and Andrew Eng...

Excerpt: ...interpretation and treat the demurrer as admitting all material facts properly pleaded.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) 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, at p. 571.) In an...

Excerpt: ...s $61,133.75 = $79,611.74, divided by three = $26,537.25). Request for judicial notice is GRANTED. Plaintiffs' 12‐20‐21 Memorandum of Costs seeks $140,745.49 in total costs. Vanguard moves to tax a $61,133.75 fee charged by Plaintiffs' retained expert, Jason Fries of 3D Forensics, Inc., for creating a 3D video animation for use at trial. Vanguard also contends the requested costs should be reduced by 2/3 because Plaintiffs entered into a sepa...

Excerpt: ...and D, and as to the record of official legislative acts contained therein pursuant to Cal. Evidence Code § 452(c), but not as to the truth of hearsay statements contained in the documents or their legal interpretations. See, e.g., Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457. Respondents' Demurrer to the First Cause of Action in Petitioner's Amended V...

Excerpt: ...LICE'S AT SKYLONDA, INC.; and DOES 1 THROUGH 10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 17‐CIV‐03724 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING MOTION TO COMPEL Defendants Richard K. Rogers and Alice's at Skylonda, Inc.'s Motion to Compel Further Response to Defendants Requests for Production of Documents, Set Three (Motion) came for hearing before this Court on March 3, 2022 at 2:00 p.m. All parties appeared thro...

Excerpt: ...dent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 19‐CIV‐06531 Assigned for All Purposes to Hon. Danny Y. Chou ORDER RE RESPONDENT'S MOTION TO COMPEL Respondent California Insurance Company (CIC)'s Motion to Compel Further Responses and Production (Motion) came for hearing before this Court on March 3, 2022 at 2:00 p.m. All parties appeared through their counsel. Having considered all papers filed in support of and in opposition to the Motion, oral...

Excerpt: ...d this action against Defendant/Cross‐Complainant Maria Rosado to collect an outstanding credit card debt in the amount of $2,270.33. Cross‐Defendants Harris & Zide and Flint Corey Zide (collectively, “Harris & Zide”) filed the Complaint in this action on behalf of LVNV. In response, Ms. Rosado filed a Cross‐Complaint, asserting two causes of action against Harris & Zide for violations of the Federal Fair Debt Collection Practices Act (...

Excerpt: ...ART and DENIED‐IN‐PART, as set forth below. As to the First Cause of Action (failure to pay all hours worked) and the Second Cause of Action (failure to pay overtime), the Motion for Summary Adjudication is DENIED. See Defs' UMF 5 (disputed); CACI 2700 (Non‐Payment of Wages). As a threshold issue, Defendants suggest Plaintiff Chavez may have been a nonexempt employee because he performed managerial/supervisory tasks, and thus he cannot seek...

Excerpt: ...D AT THIS TIME subject to reconsideration after Plaintiff proves liability against Defendant Kukje Inc.; and is DENIED AT THIS TIME as to the requests for production of documents, subject to reconsideration after Plaintiff proves liability against Defendant Kukje Inc. The parties shall stipulate and submit a proposed Confidentiality Order for this case. A sample order is available on the Court's website under Complex Civil Litigation. Defendant c...

Excerpt: ... for Deposition and Provide Further Discovery Responses is GRANTED. The Court imposes terminating sanctions and therefore dismisses Plaintiff's case. Alternatively, if that order is not upheld, the Court issues evidentiary sanctions and strikes portions of the prayer. This Court is familiar with this case having presided over key motions when it was Law and Motion judge and having been the single assigned judge on this case since December 4, 2020...

Excerpt: ...ry motion to review before granting it.” California Judge's Benchbook: Civil Proceedings Before Trial § 6.21 (Thomson Reuters 2021). Therefore, the Court has substantively reviewed Defendants' demurrer. Defendants demur to the entire Complaint on the ground that it fails to allege facts sufficient to constitute any cause of action. (See Defendants' Demurrer.) However, Defendants also argue in their Memorandum that the Complaint is uncertain. (...

Excerpt: ...t alleges that in February 2021, Defendant published an internet post on GoFundMe (“post”) claiming that Plaintiff Mohamed Sameh Mahmoud (“Plaintiff”) engaged in unlawful conduct against Defendant Daria Vinogradova (“Vinogradova”), who Plaintiff is married to but currently separated. (Complaint ¶¶ 6, 8.) These statements included that Plaintiff took the car keys and left such that Plaintiff could not get to and from work, that Plain...

Excerpt: ...a Thomas on 1‐4‐22 in San Carlos, Ca. Defendant has not opposed the motion. See CRC 8.54(c) (“A failure to oppose a motion may be deemed a consent to the granting of the motion.”). Defendant's failure to oppose this motion is consistent with her prior conduct. Defendant did not respond to the Complaint, resulting in her default, and entry of the 12‐8‐20 Judgment. Similarly, in recent court proceedings in the State of Hawaii, Defendant...

Excerpt: ...parents in March 2017, and to enjoin Defendant “to cease the nuisance and harassment created by the shining of the high intensity floodlights onto Association property.” MPA, p.6. According to Plaintiff, “The most egregious action that must be enjoined, however, is the installation and intentional shining of high intensity lights onto Association property.” Id., p.7. Plaintiff has supported its motion with the declarations of Randy McManu...

Excerpt: ...Ex. A). Defendants' request for judicial notice is denied as to all other matters, as they are not material to the Court's ruling on the demurrer. The FAC and the Permit Do not Show that Civil Code section 3482 Is a Defense. “Any violation of Title 17 is declared to be a nuisance . . . .” (Muni Code, Title 17, Chapter 17.04.050.) The FAC alleges that the Cabana is within the setback, which is a violation of Title 17. Since Defendants are viol...

Excerpt: ... and ROES 1 through 100, inclusive, Cross‐Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 21‐CIV‐01560 Assigned for All Purposes to Hon. Danny Y. Chou ORDER RE CROSS‐DEFENDANTS' DEMURRER AND MOTION TO STRIKE Plaintiff and Cross‐Defendant City of Half Moon Bay's (Half Moon Bay or the City) Demurrer to Defendants Thomas J. Gearing and Daniel K. Gearing's (collectively, the Gearings) Cross‐Complaint (Demurre...

Excerpt: ...when, where, to whom and by what means the representations were tendered.” (Lazar v. Superior Court (Rykoff‐Sexton, Inc.) (1996) 12 Cal.4th 631, 645 (Lazar).) Plaintiff must also allege “both the injury or damage suffered and its causal connection with plaintiff's reliance on defendant's misrepresentations.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (Rutter Guide 2020) ¶ 6:139, emphasis omitted.) In their Demurrer, Defe...

Excerpt: ...any other person or his property.” (Bewley v. Riggs (1968) 262 Cal.App.2d 188, 194.) “The driver of an automobile is bound to use reasonable care to anticipate the presence on the highway of others who have equal right to be there . . . .” (Hill v. Peres (1934) 136 Cal.App. 132, 137.) “It cannot be disputed that [a motorist owes] a duty . . . not to drive under the influence of alcohol . . . .” (Bryant v. Glastetter (1995) 32 Cal. App. ...

Excerpt: ...ct to the first cause of action for cancellation of the parties' agreement, and as to the third cause of action for fraud. 1 st COA ‐ Cancellation Defendant contends “Plaintiffs' cause of action is based on the alleged deficiencies of the components of the Contract itself, which Plaintiffs received and entered by September 8, 2014. . . . Therefore, the statute of limitations began to run and would have expired on or about September 8.” MPA,...

Excerpt: ...mpany v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1024, 209 L.Ed.2d 225 quoting Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 919. Specific jurisdiction is different: It covers defendants less intimately connected with a State, but only as to a narrower class of claims. The contacts needed for this kind of jurisdiction often go by the name “purposeful availment.” Burger King Corp. v. Rudzewicz, 471 ...

Excerpt: ... 3294. Meet and Confer GM has not filed the meet and confer declaration required by Code Civ. Proc. Sect. 435.5. The argument in GM's Memorandum of Points & Authorities that “GM made a good faith attempt to meet and confer to resolve the issues in this motion to strike without the need for court intervention, but was unsuccessful despite its best efforts,” does not satisfy Sect. 435.5, which requires a sworn declaration attesting to a proper ...

Excerpt: ...monstrating Defendant Alexander Dominguez entered into a credit card agreement for the account ending in 7959 (see 11‐19‐21 Decl. of Kristofer Kasson; 11‐19‐21 Separate Statement), that Defendant incurred a debt to Plaintiff on the 7959 account of $6,499.66, and that Defendant has not paid the amount due. Code Civ. Proc. Sect. 437c(p)(1). The evidence establishes that Plaintiff performed its obligation(s) under the agreement(s) by paying ...

Excerpt: ...s in the Amended CrossComplaint by Defendant/Cross‐Complainant St. Giab Inc. (“CrossComplainant”), is OVERRULED. Business and Professions Code section 17200 prohibits unfair competition, which includes an unlawful, unfair or fraudulent business act or practice. (See Bus. & Prof. Code § 17200.) “Unfair” under section 17200 has been described as violating established public policy, or “is immoral, unethical, oppressive or unscrupulous ...

Excerpt: ...ng Recovery Act (the “Recovery Act”) at California Code of Civil Procedure § 1179.08 et seq. The Recovery Act applies broadly to any “notice for a residential rental property that demands payment of COVID‐19 recovery period rental debt and that is served pursuant to subdivision (e) of Section 798.56 of the Civil Code or paragraph (2) or (3) of Section 1161.” Code Civ. Proc., § 1179.10(a). The Recovery Act defines “COVID‐19 recover...

Excerpt: ...D. Plaintiff's Motion for Summary Adjudication is GRANTED in part pursuant to Code of Civil Procedure §437c(f) with respect to the Ninth Cause of Action for Failure to Provide Records and DENIED with respect to the remainder of the motion, as follows: Procedural Issues in Plaintiff's Motion Plaintiff's motion fails to comply with the California Rules of Court Rule 3.1350(b) regarding identification of all issues in the notice of motion. Defendan...

Excerpt: ...tation and Second Cause of Action for Fraudulent Concealment is OVERRULED. Cross‐Defendant asserts that Cross‐ Complainant cannot allege facts to support justifiable reliance because the fee sharing agreement that Cross‐Complainant seeks to enforce is unlawful and against public policy because it fails to comply with Professional Rules of Conduct Rule 1.5.1. Rule 1.5.1 governs fee divisions among lawyers that are not in the same law firm, a...

Excerpt: ...NA LIFE INSURANCE COMPANY, Plaintiffs, v. THE ALLERGY AND ASTHMA CLINIC; ANDREW ENGLER, M.D., and DOES 1‐25, inclusive Defendants. RICARDO LARA, as California Insurance Commissioner, on behalf of the Department of Insurance and the People of the State of California Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV536118 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING MOTION TO QUASH The Motion to Quash...

Excerpt: ...ions is GRANTED WITH LEAVE TO AMEND. The motion to strike “Attachment 12” is DENIED AS MOOT. As to the Complaint's punitive damages allegations, the motion is GRANTED, for several reasons. First, because the Court is sustaining Defendant's demurrer to each asserted cause of action, the punitive damages claim, which is predicated on the asserted causes of action, necessarily fails. Second, even if the wrongful death claim had been properly ple...

Excerpt: ...Plaintiffs cannot establish their claims for wrongful foreclosure or to set aside the trustee's sale because there is no triable issue of fact as to whether the trustee's sale of the subject property was illegal, fraudulent, or willfully oppressive. According to Defendants, “The undisputed evidence demonstrates the transfer of the Deed of Trust to US BANK, as Trustee, and no void Assignment is implicated.” MPA, p.1‐2. Defendants further ass...

Excerpt: ...22. As to the First Cause of Action, alleging negligence, and the Second Cause of Action, alleging premises liability, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. The Complaint does not assert a viable survivorship claim. Rather, Plaintiffs assert these two causes of action in their individual capacities. Plaintiffs do not allege they represent decedent's estate, or are decedent's personal representative(s) or successor(s)‐in‐interest. See...

Excerpt: ...led their SLAPP motion. On August 24, 2021, the Court granted Plaintiff's motion to conduct limited discovery pursuant to Code of Civil Procedure § 425.16(g). The written order was filed on September 23, 2021. On October 26, 2021, Plaintiff filed her opposition to the SLAPP motions and on November 1, 2021, Defendants filed their replies. Between the time that Defendants filed their motion and Plaintiff filed her opposition, the Supreme Court iss...

Excerpt: ...m seeking an award of costs of proof under section 2033.420. The case Plaintiffs rely on, City of Glendale v. Marcus Cable Assocs., LLC, 235 Cal. App. 4th 344, 348 (2015), is distinguishable since it involves a federal law that expressly limited remedies to equitable relief. Under section 2033.420, if a party fails to admit the truth of any matter when requested to do so, and if the party requesting that admission thereafter proves the truth of t...

Excerpt: ... 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 elements of an open book account claim fo...

Excerpt: ...n Order to Show Cause re Failure to Complete ADR Process on August 10, 2021; and (2) a Case Management/Trial Setting Conference on August 10, 2021, where the Court set a jury trial for March 9, 2022, a Pretrial Conference on February 7, 2022, and a Mandatory Settlement Conference on February 24, 2022. The parties failed to file any of the documents required by the Pretrial Order, e.g. motions in limine, jury instructions, witness and exhibit list...

Excerpt: ...t by Plaintiffs Vincent Pluvinage and VPV, LLC (“Plaintiffs”) is ruled on as follows: A party may move to strike out any irrelevant, false or improper matter inserted in any pleading. (C.C.P. § 436(a).) The Motion to Strike Paragraph 22, lines 15 to 17, is DENIED. Defendants seek to strike the allegations regarding the CHALLENGES article that they claim are false. In support Defendants request judicial notice of this article. (See Defendants...

Excerpt: ...date, which had already been continued five times, was set for Jan. 11, 2022. Over Defendant's opposition, the Court thereafter granted Plaintiff's ex parte application to continue the Jan. 2022 trial date to Aug. 2022, in light of the fact Plaintiff had already filed the present motion seeking to re‐open discovery, which was set to be heard on 2‐7‐22, after the scheduled Jan. 2022 trial date. The Court's 10 ‐27‐21 Order continuing the ...

Excerpt: ...enancy was waived. Id. at ¶8(c)(1). The 60‐Day Notice of Termination of Tenancy attached to the FAC as Ex. 2, indicates: “Possession of the premises is sought pursuant to California Civil Code § 1946 and California Code of Civil Procedure § 1161(1). Possession of the premises is also sought pursuant to California Civil Code § 1946.2 (b)(2)(A)(i) Intent to occupy the residential real property by the owner or their spouse, domestic partner,...

Excerpt: ... of Action for Negligent Misrepresentation and Tenth Cause of Action for Negligent Misrepresentation in the Second Amended Complaint by Plaintiffs Vincent Pluvinage and VPV LLC (“Plaintiffs”), is OVERRULED. Defendants demur that these causes of action fail to state facts sufficient to support them because Plaintiffs fail to plead the alleged misrepresentations with the requisite specificity. These Causes of Action are based on the same allege...

Excerpt: ...has not met its burden to show that the Second Cause of Action in the Cross‐Complaint of Putnam Automotive, Inc. and Kent Putnam (collectively, “Putnam”) is completely barred by the applicable statute of limitations. C.C.P. § 437c(p)(2). A. Tennessee's Six‐Year Statute of Limitations Applies to Putnam's Second Cause of Action. Putnam's second cause of action alleges that Nissan based its decision to not pay Putnam $950,000 under the part...

Excerpt: ...et forth below. Plaintiffs have not opposed Defendants' motions. Rather, on January 24, Plaintiffs filed a Second Amended Complaint. The Second Amended Complaint seeks to add causes of action for intentional infliction of emotional distress, unfair business practices, and nuisance. The right to amend under Code Civ. Proc. § 472, however, is limited to the original complaint; there is no right to amend, without leave of court, an amended complain...

Excerpt: ...cise of this Court's discretion; or under any other statute. Defendant has failed to demonstrate that the default judgment entered December 14, 20219 is void on its face. There is no dispute here the December 2019 Judgment is not void on its face. See 1‐26‐22 Reply brief at 3. An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record, without considering extrinsic evid...

Excerpt: ...pertaining to Defendant/Judgment debtor dating back to 2017. The documents are sought as part of Plaintiffs' efforts to collect on their 12‐23‐19 Judgment. Defendant separately filed a motion to vacate the Judgment. Defendant argues the bank records will be largely irrelevant if the Judgment is vacated, because Plaintiffs will no longer be judgment creditors. Alternatively, Defendant argues that even if the Judgment is not vacated, the subpoe...

Excerpt: ...nd Melanie Cole, as an individual (“Plaintiff”) is ruled on as follows: The Demurrer to the First Cause of Action for Breach of Contract is OVERRULED. Plaintiff alleges facts sufficient to support that Defendant is liable for breach of contract based on Defendant's alleged breach of the written Admission Agreement. (See FAC, ¶¶ 65, 67, and Exh. A, ¶¶ 8, 10.) The term “supervision promises” is not so uncertain that Defendant cannot rea...

Excerpt: ... and building materials furnished to Plaintiffs but not paid for, that factual allegations in the lien were verified under penalty of perjury as true by Defendant Berry, and that the factual allegations made in the lien were untrue. Complaint, ¶15. Defendant Berry signed the lien as the agent of Verco Ex. B to Complaint. These allegations are taken as true for purposes of demurrer. Plaintiffs sue Berco and Berry in the first cause of action for ...

Excerpt: ...t”) is ruled on as follows: 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. The Motion for Summary Adjudication to the open book account and account stated claims is also DENIED. Plaintiff's ev...

Excerpt: ...requiring Plaintiff to provide verified responses to Defendant's Form Interrogatories, Set One, Special Interrogatories, Set One, and Demands for Inspection, Set One. According to the declaration of Defendant's counsel, “To date, plaintiff has failed to comply with the Court's orders and has failed to properly respond to discovery.” Olsen Decl., ¶ 8. Defendant does not seek any lesser sanctions in its notice of motion or motion. Defendant re...

Excerpt: ...eover, a failure to file a memorandum of points and authorities constitutes an admission that the motion is not meritorious and cause for its denial. CRC 3.1113(a). Even if the Court construes the one‐page document Plaintiff filed as a memorandum of points and authorities, Plaintiff fails to provide a concise statement of the law, as required by CRC 3.1113(a). Notwithstanding the above, the motion is also denied because Plaintiff fails to meet ...

Excerpt: ... action for violation of Bus. & Prof. Code § 17200 on the grounds that “it is clear that the entire claim rests on Defendant's alleged mishandling of Plaintiff's claim and nothing more.” MPA, p.4. According to Defendant, “the claim involves only private harm which is not actionable.” Id. Defendant further asserts that Plaintiff's cannot state a cause of action because “Plaintiff fails to identify a single other policy or policyholder w...

Excerpt: ...Cause of Action for “fraud and deceit” is OVERRULED. Code Civ. Proc. Sect. 430.10(e). The Court sustained GM's demurrer to this cause of action in the SAC on grounds that, pursuant to the “Economic Loss Rule,” fraud by concealment is not actionable. See 9‐17‐21 Order; citing Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979. As explained in Robinson Helicopter, to assert a fraud claim against GM under these circumstances, Pl...

Excerpt: ... Pacific Partners Management Services, Inc. (Motion) is DENIED. Plaintiff's request for sanctions is DENIED. Defendant's request for sanctions is GRANTED. Plaintiff's counsel is ORDERED to pay Defendant $3,080.00— which represents “the reasonable expenses, including attorney's fees, incurred by” Defendant in opposing this Motion. (Code Civ. Proc., § 2023.030, subd. (a).) The Motion is DENIED as to RFP Nos. 48, 58, 59, 62, 63, 72, 93‐97, ...

Excerpt: ...Court finds that Plaintiff has satisfied his meet and confer obligations. Plaintiff sent a meet and confer letter addressing Defendant's responses to the discovery requests at issue on September 7, 2021. Defendant provided further responses on September 17, 2021. Although there is no evidence that Plaintiff attempted further meet and confer after September 17, 2021 , Defendant's further responses did not address any of the issues raised by Plaint...

Excerpt: ... James H. Seymour (Defendants' Counsel) (Sanctions Motion) is DENIED. Plaintiff seeks sanctions under Code of Civil Procedure sections 128.5 and 128.7 on the ground that Defendants' Motion for New Trial (New Trial Motion) was frivolous and harassing. The Court, however, concludes that Plaintiff has not established that the New Trial Motion was frivolous or brought in bad faith. As an initial matter, the Court notes that no order appears to have b...

Excerpt: ...ed each of the specific requests for sealing as well as the pleadings filed regarding this motion. This Court in exercising its discretion, after considering and balancing all the factors in California Rule of Court 2.550 and NBC Subsidiary (KNBC‐TV), Inc. (1999) 20 Cal. 4th 1178, 1204 (“KNBCTV”) specifically finds for each of the portions identified below: (i) there exists an overriding interest, which (ii) overcomes the right of public ac...

Excerpt: ...ing the record and weighing the Tech‐Bilt factors finds that Transmetro has met its burden of demonstrating Plaintiff's settlement with Defendants A3 Mobility, LLC and Jose Antonio Rodriguez, Jr., for the collectively sum of $50,000, was not entered into in good faith for purposes of Code Civ. Proc. Sect. 877.6 and Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499‐500. Even without considering the sworn November 10,...

Excerpt: ...tioners Mustafa Edais and Majeda Edais (“Plaintiffs”), is OVERRULED. Plaintiffs' Verified Petition for Writ of Mandate and Complaint alleges three causes of action concerning Defendants' alleged failure to comply with Plaintiffs' California Public Records Act (“CPRA”) request. The CPRA request seeks all documents received or generated by, or currently in the possession of the San Mateo County Coroner's Office in connection with the death ...

Excerpt: ...ED. Code Civ. Proc. Sect. 431.10(e), (f). Second Cause of Action (Bus. & Prof. Code Sect. 7031) De Bibo's Demurrer to the Second Cause of Action, alleging a violation of Bus. & Prof. Code Sect. 7031, is OVERRULED. De Bibo argues this cause of action, as well as the Fifth and Sixth Causes of Action (alleging fraud/negligent misrepresentation), are time‐ barred on their face. (Mot. at 13‐14). However, Code Civ. Proc. Sect. 430.41(b) prevents De...

Excerpt: ...ummary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant ‘must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial...