Excerpt: ...y of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.” (C.C.P. § 128.7(a).) “An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (Ibid.) A notice of hearing must be filed and served with the Demurrer. (See CRC Rule 3.1320(c).) Thus, the Notice of Hearing is STRICKEN...

Excerpt: ... argument lacks merit, both because Defendant filed no evidence supporting this argument, and because he admits he resides in California. The motion also appears to challenge subject matter jurisdiction and service of the Complaint. These arguments were not properly noticed. Defendant also offers no evidence or authority indicating the Court lacks subject matter jurisdiction, or that the Complaint was improperly served. While Defendant's moving p...

Excerpt: ...Court grants Plaintiff's request for judicial notice as to all requested matters. The Court exercises its discretion not to rule on U.S. BANK's objections to Defendants' opposing evidence, since none of the evidence affects the Court's ruling on the motion. (Code of Civ. Proc. Sect. 437c, subd. (q) (court need rule only on objections deemed material to court's disposition of motion).) A. Plaintiff U.S. BANK Meets its Initial Burden A partition ac...

Excerpt: ... The Demurrer to Plaintiff's Second Amended Complaint (SAC) is SUSTAINED without leave to amend pursuant to Cal. Code of Civ. Proc. § 430.10(e). First CAUSE OF ACTION (COA) for Declaratory Relief This COA is dependent on the other COA's in the SAC. As discussed below, those COAs fail. Second COA for Breach of Oral Contract As was the case with the First Amended Complaint (FAC), the SAC does not allege mutual consideration (See CACI 302 (Contract...

Excerpt: ...ding to dismiss Plaintiff's action on grounds of forum non conveniens is DENIED, for the reasons set forth below. Defendant Financial Pacific Leasing's motion for joinder in the motion to dismiss is GRANTED. The motion is procedurally proper as a defendant may file a forum non conveniens motion after a demurrer is filed. Global Financial Distributors, Inc. v. Superior Court (2019) 35 Cal.App.5th 179, 191‐192. Defendants Jeff O'Day and First Pac...

Excerpt: ...gal arguments in this demurrer are not applicable to her. The joinder is also unnecessary because she has filed her own demurrer. The Court rules of the Demurrer of MOORE as follows: Demurrer to the ninth cause of action (breach of fiduciary duty) is OVERRULED. As a real estate broker who promised to act on behalf of Plaintiff regarding the sale of the business, paragraph 12 of the Complaint, MOORE had a fiduciary duty to Plaintiff. (William L. L...

Excerpt: ...and Inventions Assignment Agreement is substantively unconscionable and, if so; (ii) whether that provision may be severed from the Agreement. Upon review of the parties' original moving papers and opposition, as well as the parties' supplemental briefs and the authorities cited therein, the Court rules that Defendant Snowflake, Inc.'s Petition to Compel Arbitration and Stay Proceedings is GRANTED for the reasons set forth below. Defendant has me...

Excerpt: ...ssional negligence claim. (Mot. at 16:28‐17:20.) The “Plaintiff has no evidence” rule for summary judgment is that “the plaintiff does not possess, and cannot reasonably obtain, evidence that would allow such a trier of fact to find any underlying material fact more likely than not.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 845.) Though Plaintiff's answers to Defendant's first set of Special Interrogatories largely reitera...

Excerpt: ...ble Statute of Limitations (“SOL”) is one year pursuant to Cal. Gov. Code § 12960, as it was in effect prior to January 1, 2020 when it was modified by the SHARE Act to a three‐year period. According to Plaintiff, the SOL began to run only when SamCERA granted her application for disability retirement in December 2019 with a lessened lump sum payment because of Plaintiff's return to work in 2015. Plaintiff alleges that Defendant County act...

Excerpt: ...esponsive documents. It does not state whether Nordstrom agrees to produce all responsive documents in its possession, custody, or control, except those to which an objection is lodged. { See Code Civ. Proc. Sect. 2031.220}. Nordstrom shall serve a further response that complies with Sect. 2031.220. To the extent Plaintiff is arguing that certain document(s) Nordstrom promised to produce have not been produced, Plaintiff's remedy is a motion to c...

Excerpt: ...t South Bay Real Estate Commerce Group does not accept Plaintiff/Respondent MDIG's estimate of value. Therefore, the court must estimate the proper value. (Code of Civ. Proc. § 995.950, subd. (c).) Neither the moving nor opposing papers presents any admissible or reliable evidence concerning the present value of the Half Moon Bay property. MDIG offers a copy of records purportedly from the San Mateo County assessor's office, but tax assessors ar...

Excerpt: ...ted that there is a right to privacy under the California Constitution, Article I, Section 1, the right is not absolute and can be waived. In this case, there is no question that Plaintiff has tendered his mental condition in this lawsuit and that Defendants are entitled to documents related to that issue. The issue presented before this Court is the scope of the production of a subpoena issued to Plaintiff's only disclosed healthcare provider wh...

Excerpt: ... Defendant has not established that it cannot be held vicariously liable for its supervisory and administrative employees that allegedly knew about Molina's abuse, and are alleged to have still retained and inadequately supervised her. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865, 875.) (2) The motion to strike portion of paragraph 59 is GRANTED only as to the portion “while in the course and scope of employme...

Excerpt: ... Defendant's Motion for Judgment on the Pleadings without leave to amend as to the First and Second Causes of Action in the Second Amended Complaint and made other rulings, which order Plaintiff seeks to have vacated. Plaintiff brings this unopposed motion to Vacate Judgment on the Pleadings, and to Set this Equity Action for Trial, or in the Alternative, to Enter Judgment in Favor of Plaintiff on the Second Cause of Action to Correct the Record ...

Excerpt: ... W.R.C., a minor individual, by and through, guardian ad litem, Sonia Marisol Cruz, is ruled on as set forth below. The Court has considered, in full, Plaintiff's opposition brief, even though it exceeds fifteen pages and was untimely. California Rule of Court 3.1113(d),(g). Defendants have had an opportunity to respond to Plaintiff's opposition papers. Defendants' Request for Judicial Notice is GRANTED. See Munoz v. State of California (1995) 33...

Excerpt: ...he fourth cause of action for breach of the implied covenant of good faith and fair dealing. Plaintiff shall file and serve his First Amended Complaint (with proper exhibits attached) on or before July 23, 2021. In general, a demurrer can be used only to challenge defects that appear on the face of the pleading, including attached exhibits, or from matters subject to judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Here, the Complaint ...

Excerpt: ...cause any prejudice, but notifies the parties so that they know that any in person appearances before Judge Fineman will be in South San Francisco. The Demurrer of Defendant BBV Profit Sharing Plan (“Defendant”) to the Amended Complaint of Plaintiff Bernice Turner (“Plaintiff”) is ruled on as follows: Defendant's Demurrer to the First Cause of Action for Fraud is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to...

Excerpt: ... Mateo based on the judicially noticed fact that the Police Department is a subsidiary department or division of the City. As in Defendants' briefing, Defendants City of San Mateo and Officer Andre Malott are referred to herein as City Defendants. City Defendants' unopposed Demurrer to the First Cause of Action for Intentional Tort in Plaintiff's Complaint, the only cause of action therein, is SUSTAINED with leave to amend pursuant to Code of Civ...

Excerpt: ... DENIED. Attorney's Fees Authorized by Contract The parties settled this matter following Plaintiff's acceptance of Defendants' CCP § 998 offer to compromise. The offer provided that Defendants would pay Plaintiff $160,000.00 “to resolve fully and finally all of the parties' respective claims against one another, exclusive of costs and fees.” McDonald Decl., Ex. P, p.2; McLennon Decl. ¶ 25. The offer also provided that Plaintiff “shall di...

Excerpt: ...f Action are OVERRULED. Demurrer to the fourth and fifth causes of action are SUSTAINED WITH LEAVE TO AMEND. The reasons for this ruling are set forth below. A. 1st and 2nd Causes of Action (Rescission). Demurrer is OVERRULED as to the 1st and 2nd causes of action (rescission). Service of the Complaint serves as the required notice and offer to restore benefits in this case. (Civ. Code § 1691; Wong v. Stoler (2015) 237 Cal.App.4th 1375, 1385‐1...

Excerpt: ...follows: (1) The Demurrer to the First Cause of Action for Tenant Relocation Assistance, Violation of Cal. Health and Safety Code 17975‐17975.2, is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. Defendants demur on the ground that Plaintiff lacks standing to bring this claim because the allegations do not support that Plaintiff and Defendants had a landlord‐tenant relationship. In order to ...

Excerpt: ... Provision In ruling on the Demurrer, the Court must first decide whether California or Colorado law applies to the causes of action at issue. (See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 462 (Nedloyd).) Paragraph 8.7 of the parties' agreement contains a choice of law provision – which states, in pertinent part, that “[t]he Contractor further agrees that any and all disputes arising out of or relating to this Agreement or ...

Excerpt: ...n the ground that Plaintiff failed to correctly add Parkview Produce, Inc. (PP Inc.) as the defendant instead of Parkview Produce, LLC (PP LLC) or to seek leave to file the FAC is overruled. Although Plaintiff should have added PP Inc. and stricken PP LLC from the complaint on October 2, 2019 rather than designate PP Inc. as a doe defendant, Defendant suffered no apparent prejudice. To the extent that Defendant may have been confused by Plaintiff...

Excerpt: ...o the First Amended Complaint (FAC) of Plaintiff Dategra, Inc. is SUSTAINED WITH LEAVE TO AMEND. 1. Plaintiff's First Cause of Action for Breach of Contract Against CSMC The demurrer to the first cause of action for breach of contract against CSMC is SUSTAINED WITH LEAVE TO AMEND. Plaintiff alleges that CSMC breached the parties' Collaboration Agreement by repudiating it on September 24, 2020, and by failing to perform under its terms on or after...

Excerpt: ...equests for production were served on Plaintiff on August 10, 2020, along with electronically‐signed verifications. Plaintiff initially filed this motion to compel on October 8, 2020, after the 45‐ day deadline to file a motion to compel further responses to interrogatories and requests for production expired. C.C.P. §§ 2031.310(c), 2030.300(c). The 45‐day deadline is jurisdictional, and therefore the Court lacks authority to grant Plaint...

Excerpt: ... “all” responsive documents have been produced, and if not, why not. (Code of Civ. Proc. § 2031.230.) Categories 2, 6, 8: Granted. When a response states that a reasonable and diligent search has turned up no responsive documents, the response must “specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer...

Excerpt: ... requirements for service of process are not fulfilled. In the unlawful detainer context, a defendant may contest personal jurisdiction where the five‐ day summons specific to unlawful detainer actions is not supported by a complaint for unlawful detainer. Such instances are unusual and arise only where the summons is served alongside a complaint for a completely different cause of action (e.g., breach of contract) or a complaint that fails to ...

Excerpt: ...nd Cause of Action for breach of the implied covenant of good faith and fair dealing, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. Sect. 430.10(e). The Complaint does not allege the existence of any contract between Plaintiff(s) and Defendants Treacy Group LLC, Kieran Treacy, and Kelly Treacy. Accordingly, it fails to state a cause of action against these three defendants for breach of contract and breach of the implied covenant...

Excerpt: ...g. Defendant's argument hinges on the assertion that Plaintiff's allegations in ¶11 of the Complaint create a factual basis for the SOL to begin running on August 22, 2018. That paragraph alleges: By letter dated August 22, 2018, BLUE SHIELD denied PLAINTIFF's claim for benefits under the Policy, citing lack of medical necessity despite BLUE SHIELD's receipt of extensive documentation evidencing PLAINTIFF's health care providers' determination o...

Excerpt: ...th of California, Inc., Aetna Health Management, LLC, and Aetna Life Insurance Company (collectively, Aetna) is GRANTED IN PART and DENIED IN PART 1. Defendants' Special Interrogatories (Set Three) Nos. 23‐27, Requests for Production (RFP) (Set Three) Nos. 1‐5 & Person Most Knowledgeable (PMK) Deposition As a threshold matter, the Court finds that Defendants' motion is timely as to the Special Interrogatories, RFPs, and PMK Deposition. The Mi...

Excerpt: ...ty to respond to new evidence presented by Defendant in its reply papers. (See Plaintiff's Suppl. Brief.) Having reviewed this new evidence and Plaintiff's Supplement Brief as well as all the other relevant pleadings filed by the parties in connection with this Motion and case, the Motion is denied. This is an employment discrimination case. Decedent Nick Theroux (Decedent) owned an auto repair shop. Gomez alleges that she worked at the shop begi...

Excerpt: ...nopposed Request for Judicial Notice is GRANTED. Plaintiff Skendzic Nenad's unopposed Request for Judicial Notice is GRANTED. In a previous action filed on July 18, 2017, Plaintiff asserted causes of action for negligence and tort of another against Defendants. Those causes of action alleged the same wrongdoing by Defendants that is alleged in this action. (See Request for Judicial Notice (RJN), ex. 1.) Plaintiff's previous causes of action again...

Excerpt: ...poenas Plaintiffs served on JPMorgan, Wells Fargo, BBVA USA regarding documents related to ERE, Mumba and Chartreuse Investments, Inc. (“Chartreuse”). Defendants filed two protective order motions. On November 17, 2020, Defendants filed the first motion seeking to quash service of the ERE subpoenas and one of the Mumba subpoenas and related relief. On November 17, 2020, Defendants filed the second protective order motion seeking to quash serv...

Excerpt: ...Fourteenth Cause of Action], and (4) Civil Conspiracy to Commit Fraud [Seventeenth Cause of Action]. Plaintiff's theory is that Mr. Crawford “failed to act with reasonable care and engaged in wrongful conduct when he did not exercise his due diligence prior to drafting the Second Set of testamentary documents. [Mr. Crawford] failed to confer with his client and determine his true testamentary intent.” Complaint, ¶ 73. Mr. Crawford contends h...

Excerpt: .... Plaintiff does not dispute that the clerk accepted and filed Defendant's motion to quash in 20‐UDU‐00113 on January 5, 2021 and set the matter for a hearing on February 1, 2021. At the hearing on Defendant's motion to vacate default in this matter, Plaintiff's counsel contended that the clerk had notified Defendant that the motion to quash had been filed in 20‐ UDU‐00113. Notwithstanding this fact, however, no competent evidence was int...

Excerpt: ...�), and Defendant's Answer does not state facts sufficient to constitute a defense to the Complaint. Plaintiff appears to contend that Defendant's Answer is insufficient because it constitutes a negative pregnant, and therefore does not effectively deny the allegations in the Complaint. However, a negative pregnant is explained as when a defendant “makes the denial in the exact words of the statement [alleged in the Complaint], it is possible t...

Excerpt: ...equately pleads a negligence claim against Defendant Liang based on vicarious liablity. The TAC sufficiently alleges that Defendant Ma was Defendant Liang's agent and was acting within his authority at the time he allegedly committed the wrongful acts. Id., ¶15. The allegations show that Defendant Ma accepted “a $500 deposit for rent” from Plaintiff so that he could move in a couple of days early. TAC, ¶¶11, 21‐22. Despite this agreement...

Excerpt: ... as “PHI,” even though PHI, or “Packet,” is the company's prior name. As to the Third Cause of Action alleging breach of contract, the Demurrer is OVERRULED. Code Civ. Proc. Sect. 430.10(e). The SAC alleges PHI breached the “PHI Agreements” (9‐10‐19 Employment Agreement; Stock Option Grant Agreement; Packet Equity Incentive Plan) by failing to accelerate and immediately vest all of Plaintiff's PHI stock options when PHI constructi...

Excerpt: ...nt's demurrer to the "entire SAC" on the ground of uncertainty is overruled. Defendant fails to provide any arguments as to why the first, second and third are uncertain. C. Defendant's demurrer to the third cause of action is sustained without leave to amend. The economic loss rule bars Plaintiff's claim. The economic loss rule allows a plaintiff to recover in tort when a product defect causes damage to "property other than the product itself." ...

Excerpt: ...efer to Equinix Services, Inc. as “PHI,” even though PHI or “Packet” is the company's prior name. PHI's motion to strike each of the SAC's causes of action asserted against PHI is DENIED. PHI merely references its arguments made in its concurrently‐filed Demurrer to the SAC, arguing that for the same reasons stated in the Demurrer, the Court should strike each cause of action asserted against PHI. PHI's argument that the SAC's claims ar...

Excerpt: ...7) 3 Cal.5th 531.) And Plaintiff Fourth Amended Complaint (4AC) repeatedly identifies his wife as having been involved in the underlying facts. (See, e.g., 4AC, ¶¶ 19‐22, 28, 31, 36.) Plaintiff also expressly identified his wife in discovery responses as a witness. (See Lowe Decl., Ex. A [Plaintiff's response to Form Interrogatory No. 12.1].) Finally, Defendant appears to have a recorded telephone call between Ms. Olazabal and a Nordstrom Cus...

Excerpt: ...as a result of the events at issue in this action. (Ibid.) Defendants do not dispute that Plaintiff is 86 years old. Defendants, however, contend that Plaintiff has not submitted any evidence in support of his claim that his health requires a trial preference. Defendants assert that Plaintiff's counsel's declaration “should be disregarded by the Court as Counsel is not a medical expert.” Pursuant to Code of Civil Procedure section 36.5, howev...

Excerpt: .... (Evid. Code, § 452, subd. (d).) Defendant's Demurrers to the First, Second, Fourth through Eleventh, and Thirteenth through Fifteenth Causes of Action are SUSTAINED WITHOUT LEAVE TO AMEND. The defects in Plaintiff's First Amended Complaint (FAC) identified in the Court's May 23, 2019 Order sustaining Defendant's demurrer to these causes of action with leave to amend have not been cured by the SAC. The SAC is comprised of allegations that are, ...

Excerpt: ...ion 484.090, subdivision (a), a court “shall issue a right to attach order . . . if it finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than recovery on the claim upon which the attachment is based. (4) The amount t...

Excerpt: ...rocured by extrinsic fraud or mistake. Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 299. Defendant Michael Dilkey declares that he was never served with the operative First Amended Complaint and Amended Summons, either personally or by mail. A proof of service of the amended summons and complaint was filed on June 24, 2015, reflecting personal service on Mike Dilkey in the parking lot of his business on Lindbergh Street in Auburn by a licensed p...

Excerpt: ...poenas Plaintiffs served on JPMorgan, Wells Fargo, BBVA USA regarding documents related to ERE, Mumba and Chartreuse Investments, Inc. (“Chartreuse”). Defendants filed two protective order motions. On November 17, 2020, Defendants filed the first motion seeking to quash service of the ERE subpoenas and one of the Mumba subpoenas and related relief. On November 17, 2020, Defendants filed the second protective order motion seeking to quash serv...

Excerpt: ...Fourteenth Cause of Action], and (4) Civil Conspiracy to Commit Fraud [Seventeenth Cause of Action]. Plaintiff's theory is that Mr. Crawford “failed to act with reasonable care and engaged in wrongful conduct when he did not exercise his due diligence prior to drafting the Second Set of testamentary documents. [Mr. Crawford] failed to confer with his client and determine his true testamentary intent.” Complaint, ¶ 73. Mr. Crawford contends h...

Excerpt: ...int, the declaration of Paul Johnson indicates only that the parties communicated in writing. Although the declaration states that he parties spoke on the telephone, this conversation concerned the original complaint. CCP §430.41(a) provides that if an amended pleading is filed, the responding party shall meet and confer again before filing a demurrer to the amended pleading. Consequently, the hearing on the demurrer is continued to July 13, 202...

Excerpt: ... Posting Bond indicating compliance with that order. The Court's reasoning as to the denial of the consolidation motion follows. "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or de...

Excerpt: ...e claim for violation of Business and Professions Code section 17200, contending that Defendants WooSung Corporation and Yi unlawfully possessed and sold skate wing in violation of Fish and Game Code sections 2021 and 2021.5. (See Complaint ¶¶ 10, 12.) Yi demurs that the Complaint fails to allege facts sufficient to support his liability because Plaintiff seeks to hold him liable under the “Responsible Corporate Officer Doctrine” (“RCOD�...

Excerpt: ...o 10, Defendants. PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff, v. MARJORIE ANUNCIACION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 19‐CLJ‐07347 [Joined with 18‐CLJ‐06667 and 19‐CLJ‐07387 solely for hearing on these motions] Assigned for All Purposes to Hon. Danny Y. Chou ORDER DENYING PLAINTIFFS' MOTIONS RE INFORMAL DISCOVERY CONFERENCES June 3, 2021 Law and Motion Calendar PAGE 6 Judge: ...

Excerpt: ...1.320, subd. (a) [authorizing motion “If a party filing a response to a demand for inspection . . . thereafter fails to permit the inspection . . . in accordance with that party's statement of compliance”].) Plaintiff seeks an order compelling Defendants to produce “unaltered” documents responsive to Plaintiff's Request for Production of Documents (Set One) (RPD) Nos. 5, 12, 13, 14, and 20. Defendants agreed in their original responses to...

Excerpt: ...ants attempted to meet and confer in good faith. Francis Decl., ¶¶ 2‐7. Further, following the parties' participation in an informal discovery conference, the Court authorized this motion to compel. 4/15/21 Minute Order. Plaintiff has placed his mental condition at issue due to his claim for intentional infliction of emotional distress and his assertion that he has experienced “grave emotional distress.” Compl. ¶¶ 97‐104. Plaintiff do...

Excerpt: ...Grayson's allegedly fraudulent representations renders the arbitration agreement unenforceable lacks merit. Plaintiff claims that Mr. Grayson fraudulently represented to him that the employment agreement was a “mere formality.” Though claims of fraud in the execution of the entire agreement are not arbitrable under either state or federal law (Rosenthal v. Great Western Fin'l Secur. Corp. (1996) 14 C4th 394, 416; Duffens v. Valenti (2008) 161...

Excerpt: ... of action, Plaintiff seeks a judicial declaration and injunction invalidating and enjoining enforcement of San Bruno Municipal Code Section 6.58.020, which bans marijuana distribution facilities, and San Bruno Municipal Code Section 3.18, which adds up to 10% tax on gross receipts of cannabis businesses operating within the City. He challenges these ordinances on the ground that they violate the First, Fourth, Fifth, and Fourteenth Amendments of...

Excerpt: ...intiff Serra Falk Goldman to Further Respond to Its Special Interrogatories, Form Interrogatories, and Requests for Production of Documents,” filed 1‐29‐21, is GRANTED‐IN‐PART and DENIED‐IN‐PART, as set forth below. Special Interrogatory No. 13 and Request for Production, Nos. 13‐14, 18‐27, 31, 33, 35, or 38. The parties dispute whether Commissioner Halperin authorized this motion to compel. As to these requests, after reviewing...

Excerpt: ...” is interpreted broadly to favor an award of attorney's fees to a partially successful defendant. Where a defendant obtains some benefits of a partially successful SLAPP motion, the defendant's fee recovery is normally reduced proportionately, but not denied entirely. Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1017. However, a fee award is not required when...

Excerpt: ...ree that FCA is not a signatory to the arbitration agreement – which appears in a sales contract between Plaintiff and the nonparty seller, Putnam Automotive Inc. (Putnam). (Hanson Decl., ex. A.) As a result, FCA bears the burden of establishing standing to enforce that agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 15.) FCA has not met this burden. First, the express terms of the sales contract do not establish an agreement to arbitrate ...

Excerpt: ... Complaint (Motion) is GRANTED. In the Motion, Defendant seeks summary adjudication of the second through fifth causes of action in Plaintiff's Amended Complaint (PAC) based on the 26th affirmative defense in its Answer to the PAC. That defense alleges that Defendant has a vested right to use the property for its sewer line under Civil Code section 1009, subdivision (d). As explained below, the Court finds that Defendant has met its burden of est...

Excerpt: ...inthis case. The Court takes judicial notice of the public records of the State Bar of California. In re White (2004) 121 Cal.App.4th 1453, 1469 fn. 14. A. Factual Background On March 15, 2019, the Court granted Defendants' motion to compel arbitration. Thereafter the parties were unable to agree upon an arbitrator. Defendants' former attorney filed a Rule 9.20 Notice of Interim Suspension on August 29, 2019. D's RJN, Exh. A. Defendant Carolina B...

Excerpt: ...t forth below. Defendants Ihab Hanna D.D.S. and Hanna D.D.S., Inc. move to quash a subpoena that Plaintiff Dr. Jumani has served on Bank of America, which seeks a broad range of banking records relating to Defendant Dr. Ihab Hanna, dating from Sept. 1, 2018 to the present. The subpoena seeks banking records relating to all four named Defendants. This motion to quash is filed by just two of the four Defendants—Dr. Hanna and his corporation, Hann...

Excerpt: ...s tentatively ruled upon as follows. This Court grants preliminary approval of the Settlement as set forth in the Joint Stipulation and Settlement Agreement attached as Exhibit 2 to the Declaration of Douglas Han. The Court finds the terms to be within the range of reasonableness of a settlement that ultimately could be granted approval by this Court at the final fairness hearing. Although the settlement is on the low side, Plaintiff's counsel is...

Excerpt: ...produce all responsive photographs and videos within 15 days from the date of service of notice of this order. Defendant's request for sanctions against Plaintiff and/or her counsel, Gail Lamchick, is GRANTED IN PART and DENIED IN PART. Plaintiff and/or her counsel is ORDERED to pay Defendant $1,260.00 in sanctions. Plaintiff has demonstrated good cause for the production of the requested documents, as the documents are directly relevant to Plain...

Excerpt: ...rte Application and Ex Parte Application for an Order Shortening Time to Hear Plaintiff's Motion to Enforce Settlement Agremeent.  Page 3, Line 26: dollar amount specified therein. 2. March 11, 2020 Declaration of Matthew Squires in Support of Plaintiff's Ex Parte Application for an Order Shortening Time to Hear Motion to Enforce Settlement Agreement  Page 2, Line 9: Wehmeyer Custom Homes recorded a mechanics' lien on my property for dollar...

Excerpt: ...021; (3) Exhibit N and the first page of Exhibit M to Defendant's Motion to Dismiss filed February 23, 2021; (4) Exhibit N and the first page of Exhibit M attached to Defendant's Amended Answer and Amended Motion to Dismiss filed March 10, 2021; and (5) Exhibit B to Plaintiff's First Amended Complaint. Court records are presumed to be open unless confidentiality is required by law. (Cal. Rules of Court (CRC), Rule 2.550(c).) For a record to be fi...

Excerpt: ...n for relief from default pursuant to Code of Civil Procedure §473.5 is DENIED. Defendant's declaration does not establish that his lack of notice was not caused by avoidance of service or inexcusable neglect. Defendant concedes that the summons and complaint were left at his place of employment with a co‐worker. While he argues the coworker was not actually or apparently in charge of the office, this argument is irrelevant. In Ellard v. Conwa...

Excerpt: ...t confirms its order granting summary judgment. The Court believes that reconsideration is appropriate based on Plaintiffs' counsel's representation that he was confused by the Court's tentative ruling for the January 26, 2021 summary judgment hearing and the relevance of the cases that the Court cited in the tentative, specifically, Sweetwater Union High School Dist. v. Gilbane Bldg. Co. (2019) 6 Cal.5th 931, 948‐949; Perry v. Bakewell Hawthor...

Excerpt: ...nctions,” filed 3‐12‐21, is GRANTED‐IN‐ PART and DENIED‐INPART, as set forth below. The motion to compel further responses to the post‐ Judgment Requests for Production (RFPs) is GRANTED, but will become moot if Plaintiff pays the $2,832.07 in costs within 10 days of this Order. This Order should be read together with the related Order of this same date, granting Defendant's motion to compel further responses to post‐Judgment Inte...

Excerpt: ...mission (RFAs) admitted, and the Court's 3‐12‐21 Minute Order granting the motion to deem RFAs admitted. The Complaint here seeks subrogation for Worker's Compensation benefits allegedly paid to Plaintiff's employee, who was injured in an automobile collision, allegedly caused by Defendant's negligence. See 3‐6‐19 Complaint. On 3‐12‐21, the Court granted Defendant's unopposed motion to deem RFAs admitted, resulting in judicial admissi...

Excerpt: ...mended Complaint (“FAC”) for failure to state a cause of action is OVERRULED. The FAC alleges that on August 22, 2018, Plaintiff was visiting friends, one of which was a paying tenant at the hotel, when he was intentionally struck by the car of Doe Defendants 6‐10 outside of the front entrance of a Holiday Inn Express. Defendant Radha Patel dba Holiday Inn Express is “engaged in the business of operating” the hotel, while the other Defe...

Excerpt: ...Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) The default judgment was entered on 4/30/2015, but Defendant did not file this Motion until 12/21/20. Second, Defendant has failed to demonstrate extrinsic fraud. The misidentification of the person accepting substitute service as Defendant's daughter does not defeat service. (See Trackman, supra, 187 Cal.App.4th at pp. 183‐184.) Defendant does not dispute that the address was her home addres...

Excerpt: ...��577551, are GRANTED pursuant to Evidence Code section 452, subdivision (d). Judicial notice is taken of the documents' filing/recording, contents, and legal effect, but not the truth of any statements therein. Defendant demurs on the ground that Plaintiff's Complaint is barred by res judicata. In support, Defendant points to the judgment entered in Makiyama v. Ito, SF Case No. CGC‐19‐577551. But an appeal was taken from that judgment on Feb...

Excerpt: ...aint on or before June 10, 2021. Defendant Cabezali's demurrer to the first cause of action is MOOT, as it is undisputed that he is not sued under the first cause of action – only the second cause of action. The second cause of action is for fraudulent inducement to entered into the settlement agreement and release contract. This is not pleaded as a tort claim for fraud itself. This is a contract claim, for which the remedy is rescission on the...

Excerpt: ...t Two, is GRANTED‐IN‐PART and DENIED‐IN‐PART. The interrogatories are relevant, but Plaintiffs agreed during the Jan. 26‐27 IDC to answer the first 40 special interrogatories. Plaintiffs did not file a motion to protective order as to the remainder. As to Special Interrogatories Nos. 29‐40, the motion is DENIED. Plaintiffs already agreed at the 1‐26‐21 IDC to provide further responses to Nos. 29‐40. See 1‐26‐21 IDC Order (Co...

Excerpt: ...ause of Accounting is SUSTAINED with leave to amend as to Defendant Hanna DDS, Inc. “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) The Complaint alleges that Defendant Defendant Ihab M. Hana, D.D.S. authorized the processing of insurance claims through Defendant Hana DDS, Inc.'s...

Excerpt: ...tated below. First, all six asserted claims are uncertain because they do not identify, with sufficient clarity, the specific plaintiff(s) asserting each claim and the specific defendant(s) against whom each claim is asserted. Code Civ. Proc. Sect. 430.10(f); CRC 2.112 (each cause of action shall identify the plaintiff(s) asserting it and the defendant(s) against whom it is asserted). This should be made explicit. CRC 2.112. Further, given that t...

Excerpt: ...ompel Compliance. This discovery dispute arises from a New York personal injury action titled Louis Christophides and Cara Christophides v. Subaru Distributors Corp., New York State Supreme Court, Orange County, Case No. 004941/2018. The subpoenas seek discovery of the contents of the Facebook and Instagram accounts of the Plaintiffs in the New York action. On April 30, 2020, the Supreme Court of the State of New York, Orange County, issued an or...

Excerpt: ...gal Contract is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim and uncertainty. Plaintiffs assert that Defendant failed to comply with Business and Professions Code section 7159 and thus the contract is void. (Complaint ¶ 21.) It is unclear what claim Plaintiffs are attempting to allege though, as they fail to offer any authority to support that a claim for “Illegal Contract” exists. Further, ...

Excerpt: ...the evidence, and that Plaintiff's claims are governed by the agreement. The arbitration provision at issue, which was contained in the parties' Employee Proprietary Information and Inventions Assignment Agreement, provides as follows: Any dispute, controversy or claim arising out of or relating to either: (a) this Agreement, its enforcement, arbitrability or interpretation, or because of an alleged breach, default, or misrepresentation in connec...

Excerpt: ...guing that the documents sought in these Requests are directly relevant to this litigation, and none of Defendant's objections have merit. Thus, where a demanding party deems that an objection to a response is without merit, the demanding party may move for an order compelling further response to the demand. (Code of Civ. Proc. § 2031.310(a)(3).) Thus, the Court treats this Motion as a Motion to Compel Further Responses to Request for Production...

Excerpt: ...uires service on an a competent member of the household, followed by a mailing to the defendant at the same address. The Proof of Service, filed September 8, 2014, shows that the summons and cross‐complaint were left with Stacey Pierce at Cross‐ defendant's residence, and the papers were mailed to Cross‐defendant at that address on August 28, 2014. Service was complete 10 days after mailing. (Code of Civ. Proc. Sect. 415.20, subd. (a).) Tha...

Excerpt: ...iled his original Petition in this matter (12‐1‐20 Petition) seeking a Writ of Mandamus that would have directed Respondent police department to issue a “Certificate of Detention” following Petitioner's arrest and release, pursuant to Pen. Code Sects. 849.5, 851.6. The original Petition was apparently rendered moot by Respondent's subsequent issuance of the requested Certificate. Petitioner thereafter filed, on 2‐25‐21, the operative ...

Excerpt: ...EJUDICE. Judgment Creditor indicates that it discovered various “akas” for Judgment Debtor Maher Abudamous (Judgment Debtor) and filed a Declaration of Identity (Declaration) identifying these “akas.” As a threshold matter, however, this Declaration violates Rule 1.201(a)(1) of the California Rules of Court. It is therefore STRICKEN on the Court's own motion. Accordingly, the clerk of the court is ORDERED to remove the Declaration of Iden...

Excerpt: ...ial Notice is GRANTED. (Evid. Code, § 452, subds. (d) & (h).) Both parties refer to the plan documents in their briefs, and Plaintiff California Spine and Neurosurgery Institute (Plaintiff) does not oppose the Request for Judicial Notice. (See StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn.9.) A. First Cause of Action – Promissory Estoppel Defendant's motion for judgment on the pleadings as to Plaintiff's first cause of action...

Excerpt: ...led beyond the statutory 60‐day deadline, the Court exercises its discretion to rule on the motion. Code of Civ. Proc. Section 425.16(f.) Cross‐ defendants Atulya Velivelli's and Aditya Velivelli's special motion to strike the third cause of action from the Cross‐complaint fails to make a prima facie showing under prong one of the SLAPP statutes, Code of Civil Procedure Section 425.16, that the cause of action arises from protected speech o...

Excerpt: ...irst Set of Requests for Production of Documents, Request No. 4, is GRANTED IN PART AND DENIED IN PART. The requests for judicial notice are DENIED as irrelevant. Requests for fees are DENIED. In its written response to Request #4, Sun Valley Partners LLC make dozens and dozens of evidentiary objections – on every conceivable basis, whether or not meritorious or applicable. No privilege log was served. As part of the “meet and confer” proce...

Excerpt: ...ff failed to comply with the requirements of CRC Rule 3.1324(b). Second, Plaintiff has failed to allege a viable cause of action in the proposed amendments. Plaintiff alleges that he tripped and fell, and sustained personal injuries, while waling on the pedestrian walkway at his apartment complex. His existing complaint alleges negligence and premises liability. Plaintiff now seeks to asserts that he suffers from diabetic neuropathy and that his ...

Excerpt: ...ants shall file and serve their First Amended Cross‐Complaint on or before June 1, 2021. As to the first cross‐cause of action for abuse of process, such a claim is the willful act in the use of process not proper in the regular conduct of the proceeding. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168.) Further, “merely obtaining or seeking process is not enough; there must be subsequent abu...

Excerpt: ...ell as Plaintiff's amended opposition, filed April 19, in which Plaintiff claims that Defendants did not meet and confer in good faith. Plaintiff alleges a breach of his lease based on the claim that he had an “indefinite and perpetual” lease term that Defendants could not terminate. Complaint, ¶ 36. As alleged in the Complaint, however, the lease specified a one‐year term and stated that a 60‐day notice could be used to terminate the le...

Excerpt: ... to Sect. 397(c), Cirrus requests a venue transfer to the Sonoma County Superior Court, which is near the subject airplane crash site, on grounds that twelve (12) non‐party witnesses (4 eye‐witnesses and 8 first responders) live in or near Sonoma County and have signed declarations stating they would be inconvenienced by having to travel about 85 miles to Redwood City to testify at trial. See Sect. 397(c) (the Court may transfer venue “when...

Excerpt: ...t prejudice for the reasons set forth below. Plaintiff seeks the appointment of a discovery referee to preside over the remaining depositions in this case, in light of the fact that Plaintiff has attempted to complete the deposition of Defendant Orhan Tolu on three separate occasions. The gravamen of the parties' dispute concerns Plaintiff's counsel's questions relating to a $50,000 check issued by Defendant Tolu, and defense counsel's invocation...

Excerpt: ...The case will be set for Case Management and Trial Setting Conference. This case was filed in January 2016. In January 2017, after participation in mediation, the parties allegedly agreed to sale of the disputed property and to participate in arbitration on remaining issue of accounting. The alleged settlement stipulation of the parties was NOT provided to the Court or filed in this action. There is only a joint ex parte request by counsel for th...

Excerpt: ...), DEBORAH SULLIVAN(DOE 18), KAREN FITZGERALD(DOE 19) AND GREGORY D. HANSEN(DOE 30) TENTATIVE RULING: The Court grants Defendants' Request for Judicial Notice as to all 31 matters. The Motion to Strike, filed by Defendants MAINS, SLOAN, SHREWSBERRY, FRANCESCONI, WT CAPITAL LENDERS SERVICES, BERG, POWELL, NUNEZ, WELLS FARGO & CO., SULLIVAN, FITZGERALD, and HANSEN is DENIED. The 12 moving defendants were substituted into this matter in place of Doe...

Excerpt: ...DOE 19) AND GREGORY D. HANSEN(DOE 30) TENTATIVE RULING: A. The Complaint Fails to State any Cause of Action against the DEMURRING DEFENDANTS. The demurrers by Defendants MAINS, SLOAN, SHREWSBERRY, FRANCESCONI, WT CAPITAL LENDERS SERVICES, BERG, POWELL, NUNEZ, WELLS FARGO & CO., SULLIVAN, FITZGERALD, and HANSEN to the seventh and eighth causes of action are sustained. Neither the seventh nor eighth cause of action alleges any wrongful acts by thes...

Excerpt: ...t on the basis of extrinsic mistake. Defendant filed this motion to set aside default more than six months after the default and default judgment were entered. Accordingly, relief under CCP § 473(b) is not available to Defendant. The Court, however, may set aside default on the basis of extrinsic fraud or mistake pursuant to its equitable powers. In order to obtain relief under the Court's equitable power, Defendant must demonstrate (1) a merito...

Excerpt: ...d below. Code Civ. Proc. Sect. 436. In sustaining Putnam's Demurrer to Nissan's Second Amended CrossComplaint (2ACC), the Court concluded that the 2ACC did not allege a valid liquidated damages clause. See 11‐12‐20 Order (signed 11‐9‐20). The allegations in Nissan's 3ACC largely track the allegations from the 2ACC, with some minor additions, including the following Parag. 9: “The Repayment Provision was included in the FI Agreement beca...

Excerpt: ...c.'s Third Amended Cross‐Complaint (3ACC) is OVERRULED, for the reasons stated below. Code Civ. Proc. Sect. 430.10(e). Putnam has not shown Nissan's breach of contract claim to be time‐barred on its face Putnam first argues Nissan's breach of contract claim is time‐barred under California's four‐year statute of limitations. Code Civ. Proc. Sect. 337. Putnam made this identical argument in the context of its previous demurrer to Nissan's 2...

Excerpt: ...ntered in Case No. 19‐CIV‐06527, it does not appear that Plaintiff may be subject to a prefiling order before being found to be a vexatious litigant. (See Hupp v. Solera Oak Valley Greens Assn. (2017) 12 Cal.App.5th 1300, 1318‐1319 [refusing to dismiss claims filed by nonvexatious litigant even though nonvexatious litigant alleged claims similar to claims alleged by co‐ plaintiff who was a vexatious litigant and was the mother of the vexa...

Excerpt: ...nia Rules of Court – which states that “If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth . . . .” Regarding Form Interrogatory 17.1, Defendants' Separate Statement does ...

Excerpt: ...habilitation Plan and the individual who verified Petitioner's ex parte conservator application. Respondent also seeks the production of documents covering four topics relating to Petitioner's decision to pursue a conservatorship and Rehabilitation Plan and the grounds for those decision. Finally, Respondent seeks to depose the person most knowledgeable (PMK) of those four topics. Petitioner does not challenge Respondent's right to receive docume...