Excerpt: ...Y 18, 2020 Defendant's Motion to Dismiss or Stay on the Ground of Inconvenient Forum is DENIED. Plaintiff's Complaint alleges causes of action for declaratory relief, rescission and unfair competition under Business & Professions Code §17200 related to a non‐compete clause in the contract between Plaintiff and Defendants. This motion presents the question of whether this Court should use its discretion to stay or dismiss this case based upon t...

Excerpt: ...peal, this Court still has jurisdiction over this ancillary matter, which will not affect the issues on appeal. Code of Civ. Proc. §916(a). Defendant's Requests for Judicial Notice in Support of the Motion and Reply are GRANTED pursuant to Evidence Code Section 452(c) and 452(d). Plaintiff's Request for Judicial Notice in support of the Opposition is GRANTED pursuant to Evidence Code Section 452(d). Defendant's Motion for Attorney Fees is GRANTE...

Excerpt: ...fact in dispute in this case on whether Plaintiff was participating in an active sport, as Defendant contends or whether he had left the sport and was on his way home. Defendant Jacques' duty to Plaintiff applies to a “coparticipant in an active sport.” Ford v. Gouin (1992) 3 Cal.4th 339, 342, referencing Knight v. Jewett (1992) 3 Cal.4th 296. The question of whether Plaintiff and Defendant Jacques were coparticipants in the active sport of g...

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

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

Excerpt: ...Defendant contends that Plaintiff may not bring an unlawful detainer claim against Defendant because the Complaint admits that Plaintiff and Defendant are co‐owners of the property. Defendant fails to establish that this is a proper ground for moving to quash summons of the Complaint. There is a split of authority on whether a motion to quash service of summons under C.C.P. section 418.10(a) is the proper vehicle to challenge a complaint in cir...

Excerpt: ...ndisputed that Plaintiff's counsel is entitled to attorneys' fees in this Song‐Beverly action. Defendant disputes plaintiff's counsel's hourly rate and the number of hours billed. A prevailing buyer in a lawsuit brought under the Song‐Beverly under Act is allowed to recover as part of the judgment a sum equal to aggregate of the amount of costs and expenses, including attorney's fees based upon buyer showing and the judge determining that fee...

Excerpt: ...efendants JPMorgan Chase Bank, N.A., California Reconveyance Company, and Long Beach Securities Corp., to the First Amended Complaint, filed 2‐13‐20 (“FAC”), is SUSTAINED without leave to amend, as set forth below: Defendants' request for judicial notice is GRANTED pursuant to Evid. Code § 452(c), (d). Res Judicata The Court finds Plaintiffs' claims are barred by the doctrine of res judicata. The doctrine of res judicata, or claim preclu...

Excerpt: ...on this demurrer is whether the pleading alleges that the subject damage was to property other than the property on which Cross‐defendant was performing work. The amended cross‐complaint alleges that damage to an upstairs bedroom, a closet, and a bathroom ceiling, were caused by when “laborers were working above or in these areas and stepped through the ceiling and/or struck the walls or ceilings. (FACC para. 9.) The pleading also alleges t...

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

Excerpt: ...p.m. Contesting party is to give notice. Tentative ruling issued May 18, 2020 On the Petition of Anil Ali and Mehjabeen Ali ("Petitioners") for Release of Property from Lien of Respondent Henry Wang ("Respondent"), the court rules as follows: The court previously GRANTED the Petition for Release of Property from Lien. (See January 24, 2020 Minute Order.) The court continued the hearing on the issue of attorney's fees for Petitioners' counsel to p...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...e liability. The Moving Defendants have submitted only the declaration of their attorney, Daniel Cribbs. The declaration provides no facts, based on discovery or otherwise, relating to Plaintiff's anticipated recovery or Defendants' proportionate liability. As a result, the motion must be denied. Greshko v. County of Los Angeles (1987) 194 CA3d 822, 834; Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 CA4th 1337, 1351.” At the hearing, Movin...

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

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

Excerpt: ...e Civ. Proc. § 187. On 1‐29‐19, Plaintiff Homma, Inc. filed a Motion to Amend Judgment to Add Mr. Yoshiro Mikumo as an additional Judgment Debtor, pursuant to Code Civ. Proc. § 187. The initial 3‐14‐ 19 hearing date was thereafter continued multiple times, in part to allow Yoshiro Mikumo additional time to retain counsel to represent him in his personal capacity. On 6‐19‐19, the Court published a Tentative Ruling indicating its inte...

Excerpt: ...gree, an action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” Code of Civ. Proc. § 340.6(a)....

Excerpt: ...iscloses that she currently owns and/or has a potential beneficial interest as of February 28, 2020 of about $2,700 in Travelers Cos., Inc. Further, she discloses that she has a niece and nephew that work for Travelers Insurance Company, which may be a related company to plaintiff. The motion for entry of judgment, filed by Plaintiff Travelers Property Casualty Company of America is DENIED. To qualify for enforcement or entry of judgment under Co...

Excerpt: ...ment, the Court continued the matter to March 12, 2020 and allowed Defendants to respond to the objections. After further review of the application and all documents, the Court rules as follows. Plaintiff's evidentiary objections to the Declarations of Laurie Morgan and Andrew Engler are OVERRULED. The declaration of Laurie Morgan is based upon her personal review of nonhearsay materials and expert opinion; the Court finds she satisfies the requi...

Excerpt: ...in, and Christopher Mader, is DENIED. The gist of this action is that Defendants engaged in “overly aggressive” litigation (FAC para. 59) in order to avoid or delay paying the amounts due under the Settlement Agreement. Some of the acts supporting the claims are the filing of a cross‐complaint, four appeals, motion to stay and compel arbitration, motion for sanctions, appeal of an anti‐SLAPP order, and appeal of order granting summary adj...

Excerpt: ... wall inside the premises to create a dwelling unit.” The notice clearly informed Defendants that both (1) erecting a wall, and (2) subletting the premises, were violations of the lease. The notice was not ambiguous, irrespective of the fact that Plaintiff elected to call Defendants' activities a public nuisance. Defendants also contend the notice is defective because it was not served on the purported subtenants, and because the notice did not...

Excerpt: ...30 p.m. The Court reminds all parties that, going forward, Law & Motion matters will be heard at 1:30 p.m. This case arises from a construction/remodel project on a residential property in Hillsborough, Ca. In this motion, the Higgins (homeowners) argue that a Mechanic's Lien recorded on 6‐15‐19 by Plaintiff/contractor Abbott + Avelar Associates, Inc. (“A+A”) should be expunged because A+A did not serve a “Preliminary Notice” on the p...

Excerpt: ...ernative motion for summary adjudication of the open book account and account stated claims is GRANTED. Plaintiff is entitled to judgement on these claims of $23,863.82. An open book account is: 1) a detailed statement entered during the regular course of business by the creditor, which constitutes the principal record of one or more transactions between a debtor and creditor arising out of a contract or some fiduciary relations that 2) shows the...

Excerpt: ... Evidence are ruled upon as follows: Obj. Nos. 1‐9. OVERRULED. Obj. No. 10. SUSTAINED. The article speaks for itself. Obj. Nos. 11‐28. OVERRULED. SUMMARY ADJUDICATION OF CAUSES OF ACTION FOR DEFAMATION AND TRADE LIBEL. Plaintiffs motions for summary adjudication on their causes of action for defamation and trade libel are DENIED. A plaintiff has met the burden of showing that they are entitled to judgment on a cause of action if they have pro...

Excerpt: ...must be brought no later than “60 days after the completion of the record of the deposition.” (Code of Civ. Proc. § 2025.480, subd. (a).) The 60‐day deadline applies not only to oral depositions, but also records‐only subpoenas. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131.) Respondent argues, citing no authority, that a records‐only deposition is “complete” on the date that the records are to be produced. This i...

Excerpt: ... County's 2‐28‐20 correspondence requesting that the Court vacate Plaintiff's Dismissal and grant Defendant's motion. 2‐ 28‐20 letter, citing While the Court agrees with Defendant that a Plaintiff's right under § 581(c) to voluntarily dismiss a case prior to trial is not absolute, and that this Court has the power to vacate the Dismissal and rule on Defendant's motion under the circumstances, the Court declines to do so here. The Cravens...

Excerpt: ...alifornia. Cione v. Foresters Equity Servs., Inc., 58 Cal. App. 4th 625, 642 (1997). A party may move to compel arbitration pursuant to Code of Civ. Proc. Section 1281.2. Here, there is no disagreement that the dispute arises out of the CBA (Collective Bargaining Agreement) or that the CBA contains an agreement to arbitrate. Therefore, an agreement to arbitrate the controversy exists, and the Petition to compel arbitration should be granted, unle...

Excerpt: ...ng evidence to show that discovery as to matters occurring from 2006 through 2009 are not relevant or likely to lead to any jurisdictional evidence. Since Continental has failed to show that that the design of the engine did not occur before 2010, then it has not shown Topics 1 and 2 cannot cover the prior years (as early as 2006). Further to show specific jurisdiction, the plaintiff must show that the cause of action “arises out of” or is �...

Excerpt: ...PARTY BUSINESS RECORDS SUBPOENA The Petition/Motion to Compel Compliance with Third Party Business Records Subpoena is GRANTED IN PART. First, to the extent that Third Party Exponent, Inc. (“Exponent”) objects that this Petition/Motion is untimely under C.C.P. section 2025.480(b), the court finds this argument unpersuasive. C.C.P. section 2025.480(b) provides that a motion under this section shall be made no later than 60 days after the compl...

Excerpt: ...“No [] special relationship exists . . . that can impose a duty on Defendants to prevent any harm that may befall the Plaintiffs in this type of situation, where a simple employee, while off the clock, goes on to commit a personally motivated criminal act.” MPA, p.13‐14. This characterization of events is contrary to Plaintiffs' allegations in the complaint that “Defendants gave access to their employee to a private home which said employ...

Excerpt: ...“could reasonably infer that defendants acted in callous disregard of plaintiffs' rights, knowing that their conduct was substantially certain to vex, annoy, and injure plaintiffs. Such behavior justifies the award of punitive damages.” Farmy v. College Housing, Inc. (1975) 48 Cal.App.3d 166, 176 (italics in original omitted). “Oppression for which punitive damages may be awarded ‘means subjecting a person to cruel and unjust hardship in ...

Excerpt: ... interest of about $55,000 of JP Morgan Chase & Co. stock. Plaintiff/Cross‐Defendant U.S. Bank National Association's Demurrer to Defendants/CrossComplainants Jennifer and Frank Rosenblum's 11‐21‐19 Cross‐Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). Without chronicling the parties' extensive litigation history regarding this property (located at 35 Echo Lane in Woodside, Ca.), the Rosenblums' 11‐21‐19 C...

Excerpt: ...dvertence or excusable neglect.” CCP § 2033.300(b); see New Albertsons, Inc. v. Sup.Ct. (Shanahan) (2008) 168 CA4th 1403, 1418. While newly discovered evidence can meet this standard, Defendants have not shown that their admission resulted from “mistake, inadvertence or excusable neglect.” The evidence shows that Defendants were on notice of the existence of the French drain since March 2017. Miller decl., Ex. F, H. In fact, it was defense...

Excerpt: ... diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of time tha...

Excerpt: ...e and his proposed order was used to grant the motion. Accordingly, the Court finds proper notice. The unopposed motion for summary judgment by Defendant JOSEPH J. ALBANESE, Inc. is GRANTED. Defendant's request for judicial notice is granted as to Exhibit A (Complaint) and Exhibit I (Request for Dismissal). Defendant's request for judicial notice of Exhibits K, L, M, N, and O (Google Maps) is DENIED. The distances between two points is not part o...

Excerpt: ...se of action for declaratory relief “concerning the real party in interest on the lease.” Separate Stmt. of Amendments. Plaintiff claims it “mistakenly used the wrong legal name for the corporation in the complaint,…” Notice of Motion filed December 23, 2019 at 1:10‐12. Trial was originally set for December 2, 2019, assigned a trial judge, and trial was continued so that the Law and Motion department could decide this matter. Trial is...

Excerpt: ...ahri (“Plaintiffs”) admit that they did not file and serve a Motion to Strike or Tax Costs. (See Plaintiffs' Opposition, p.2:2; see also Cal. Rules of Court Rule 3.1700(b).) Instead, Plaintiffs claim that the court should not award Defendants such costs because the time to appeal had not expired, and therefore these cost bills were premature. Plaintiffs offer no authority to support of this argument though. Rule 3.1700(a) requires that a part...

Excerpt: ...5,000 in stock in Wells Fargo & Co New Del (WFC). Upon learning of a prior motion involving Wells Fargo, she had the stock sold on or about February 10, 2020. Cross‐Defendant Wells Fargo's demurrer to the first, second, fourth, and fifth causes of action asserted in Cross‐Complainants Ely and Sonia Tangonans' Second Amended CrossComplaint is SUSTAINED without leave to amend, for the reasons set forth below. The demurrer to the third cause of ...

Excerpt: ...f action is OVERRULED. Plaintiff has not alleged facts sufficient to support a claim for negligence, considering the only causation allegations concern remarks Defendants allegedly made about Plaintiff to others. The allegations concerning these remarks are insufficient to support a cause of action since Plaintiff has not alleged facts indicating the defamatory nature of the remarks. Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645. The Complain...

Excerpt: ...erruled. The demurrer does not identify the allegedly sham allegations or the deposition testimony that contradicts them. Yancey's Reply Brief identifies them for the first time, which is too late for lack of notice to IRA Services. Even if the court considered each of the statements from the Edwin Blue deposition, the does not explain how those statements dispose of any cause of action. The Court rules on the individual causes of action as follo...

Excerpt: ...ponse to discovery, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. In lieu of or in addition to that sanction, the court may impose a monetary sanction. Whether to grant a sanction is entirely within the discretion of the court. The court is not required to grant any particular sanction. See Weil & Brown, California Practice Guide: Civil Procedure Befo...

Excerpt: ...raphs. “A motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph . . . .” (CRC Rule 3.1322(a).) The Notice of motion fails to identify any word, phrase, sentence, or other set of allegations that Cross‐defendant moves to strike. The motion is denied to the extent it is based on the sham pleading doctrine. The argument is that Edwin Blue's deposi...

Excerpt: ...per § 664.6 because, as demonstrated by the declarations and exhibits submitted in support of the motion, the parties entered into a valid settlement agreement signed by the parties, which agreed to the Court's jurisdiction pursuant to § 664.6 (the “Settlement Agreement”). The 11‐21‐19 Addendum to Settlement Agreement preserves Plaintiff's right to enforce the terms of the Settlement Agreement pursuant to § 664.6. See Cook decl., Ex. 2...

Excerpt: ...action is SUSTAINED with leave to amend. An action to quiet title may be brought only by one holding an interest in the subject property. (Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 59.) The Complaint alleges that Plaintiff ceased holding any interest in the property after she executed a Deed transferring her entire interest to Nhan Van Pham Trust. (FAC para. 14.) However, an equitable owner may seek to quiet title when the defendant acquir...

Excerpt: ... Pines”) 11‐26‐18 Cross‐Complaint, and (b) Defendants/CrossComplainants Cary Cole Friar and Tessa Leigh Friar dba First Impressions Design & Landscape's (“First Impressions”) 1‐2‐19 Cross‐Complaint, is DENIED. As to First Impressions' 1‐2‐19 Cross‐Complaint, the motion is DENIED AS MOOT given First Impressions' 1‐31‐20 dismissal of the Cross‐Complaint. As to Pollock Pines' 11‐26‐18 CrossComplaint, the motion is D...

Excerpt: ...lainants Best Seller Ltd., Alex Abela Properties, Inc. and Alex Abela (“Defendants”), is ruled on as follows: Pursuant to Code of Civil Procedure section 425.16 (anti‐SLAPP statute), Defendants move to strike the entire First Amended Complaint (“FAC”) of Plaintiffs Proud Thai Massage, LLC and Alexander Mayer (“Plaintiffs”), or alternatively to strike ¶¶ 74‐76, 92, 94, 127, 128, 146‐148, 157, 170‐175, 179, 188 and 194. In ord...

Excerpt: ...n Award and the November 15, 2019 Award of Prevailing Party Attorney Fees and Costs (the “Arbitration Awards”) in favor of Petitioner and against Respondent Diane Josue, individually and as successor trustee of the William Heszler 2000 Living Trust, are confirmed. Pursuant to Code Civ. Proc. Sect. 1286.6, the Court also GRANTS Petitioner's request to modify the Arbitration Awards to include the legal description of the subject property in acc...

Excerpt: ...ividual Financial Records is GRANTED IN PART AND DENIED IN PART. The Court notes that Plaintiff Postal Instant Press, Inc. to failed to a Separate Statement in compliance with California Rules of Court Rule 3.1345. Nonetheless, the parties have provided sufficient information for the Court to rule on the matter. Bianlou Group, Inc. has agreed that its bank records as requested in the subpoenas may be produced. Therefore, the Court DENIES the moti...

Excerpt: ...ess to testify about the $200,000 cost of disk replacement surgery, Defendant did not rely on Plaintiff's initial expert disclosure, since the future surgery was unknown at that time. 2. Prejudice. The parties are already taking additional depositions after the statutory deadline. Defendant's Opposition does not show that adding the deposition of Nurse Gorgan will cause any prejudice. 3. Diligence or Surprise. Dr. Light's recommendation for addit...

Excerpt: ...viduals, as opposed to subcontractors. The response should be supplement to identify payments to any individuals who were not paid through the subcontractors who employed or hired them. Interrogatory 22. DENIED. The interrogatory is unreasonably overbroad. As worded, the interrogatory asks for an “identification” of every piece of paper relating to the work on the property. Interrogatory 25. GRANTED. Any amounts that third parties billed ( �...

Excerpt: ...iff has exhausted his administrative remedies. Defendants do not dispute that they were correctly named in Plaintiff's administrative complaint or that they are former employees of Defendant Broadmoor Police Protection District (“Broadmoor”). Instead Defendants argue that Plaintiff failed to exhaust his administrative remedies because he did not provide Defendants' addresses. Broadmoor's address is sufficient here. See, e.g., Martin v. Fisher...

Excerpt: ...fessionalism in the meet and confer process. The only remaining outstanding issue regarding Plaintiffs' motion to compel further request for documents is whether Defendants must produce further documents in response to Plaintiffs' request no. 158, which provides: “All DOCUMENTS produced by YOU in the class action In re Volkswagen Timing Chain Product Liability Litigation, United States District Court, District of New Jersey, Case No. 2:16‐cv�...

Excerpt: ... (interference with contract) is OVERRULED. The demurrer fails to show that no contract existed. The argument that Plaintiff's partnership with WORKING DIRT already “fell apart” and “already collapsed” before Defendants became involved does not negate the existence of a contract. The demurrer also fails to show that no interference occurred. Defendants argue that the Complaint fails to allege that Defendants committed acts to induce WORKI...

Excerpt: ...a fraud cause of action. See Oakland Raiders v. Nat'l Football League (2005) 131 Cal.App.4th 621, 629 (“[T]he pleadings set the boundaries of the issues to be resolved at summary judgment.”). The Court recognizes Plaintiff has filed a motion seeking leave to amend the Complaint, for the purpose of asserting a fraud cause of action. Nonetheless, GM cites no authority indicating the Court may summarily adjudicate a potential cause of action tha...

Excerpt: ...ct is SUSTAINED WITH LEAVE TO AMEND to allege facts sufficient to support a contract between the parties. Plaintiff alleges in her complaint that an oral agreement was made between her and Defendants. Plaintiff has failed to allege the element of consideration. “The statutory presumption of consideration . . . does not, of course, apply to an oral contract. In an action on such an agreement, the essential element of consideration must normally ...

Excerpt: ..., rather than mandatory. For venue to “lie” in a certain place means that venue is proper or sustainable in that place. Under this definition, the forum selection clause states that all disputes shall be proper or sustainable in Florida. “Shall lie” does not mean “must be filed” or “must be prosecuted.” Thus, the forum selection clause does not mean that all disputes must be filed or tried in Florida to the exclusion of any other ...

Excerpt: ...ion 473.5 is DENIED. A court may only set aside a default under CCP § 473.5 if the cross‐defendant did not receive “actual notice” in time to defend the action. The evidence shows that SVP received actual notice of the summons and cross‐complaint on June 10, 2019, more than 30 days before default was entered. (See Todd Yancey's Declaration.) SVP's Motion to Set Aside Entry of Default under CCP section 473 is DENIED. The Court recognizes ...

Excerpt: ...gly, Defendant's demurrer is sustained pursuant to Cal. Code of Civ. Proc. § 430.10(f). Additionally, Pursuant to 47 U.S.C. § 230, Defendant is immune from liability for tort claims arising from information provided by another information content provider. See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 802–803. Accordingly, to the extent Plaintiffs' claims are based on “hate speech and racially charged bullying commen...

Excerpt: ...for Judicial Notice is GRANTED; however, the Court does not take judicial notice of the truth of any factual assertions in these documents. (See Arce v. Kaiser Health Foundation Plan, Inc. (2010) 181 Cal.App.4th 471, 483 [court takes judicial notice of documents as records of any court of this state, but does not take judicial notice of the truth of any factual assertions in these documents].) As to the demurrer, the Court notes that this demurre...

Excerpt: ...19 per Code Civ. Proc. § 418.10, is GRANTED‐ IN‐PART and DENIED‐IN‐PART. As to all Plaintiffs, the Motion to Dismiss is DENIED. The Motion to Stay is GRANTED‐IN‐PART, as set forth below. As to Plaintiffs Strahan and Manno, the Motion to Stay pending resolution of the Indiana Action (Genesys Telecommunications Laboratories, Inc. v. Talkdesk, Inc. et. al., Case No. 1:19‐CV00695‐TWP‐DML) is GRANTED. Both Strahan and Manno signed e...

Excerpt: ... as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action. Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804. Given the Court's ruling on Genesys' Motion to Stay per Code Civ. Proc. § 418.10, as to Plaintiffs Strahan and Manno, this motion is DENIED AS MOOT. As to Plaintiffs TalkDesk and Hertel, the motion is also DENIED. Genesys argues ...

Excerpt: ...mba (“Plaintiff”) is DENIED. Defendants move for summary judgment on the ground that no triable issue of material fact exists as to whether Defendants had notice of a dangerous condition and whether the alleged dangerous condition caused Plaintiff's fall. As the moving party, Defendants have the initial burden to show that either (1) one or more elements of Plaintiff's causes of action cannot be established, or (2) that there is a complete de...

Excerpt: ...and are hearsay. The Declaration of Tom Scherer para. 4 does refer to an agreement, but does not attach the agreement or authenticate Exhibit 9 to the Miller deposition. The Court SUSTAINS Plaintiff's objection numbers 18 and 19 to the Declaration of Scherer paragraph 8 at 3:22 – 4:1 as lacking foundation and failing to show personal knowledge and the reference to a document is hearsay. The Court does not rule on Plaintiff's remaining objection...

Excerpt: ...stated claims, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff has failed 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 and account stated claims is GRANTED. Plaintiff presents evidence to establish all the elements of both its open book account and account stated claims. (See Plaintiff's State...

Excerpt: ...ment/discrimination/retaliation” based upon Defendants' contention that Plaintiff incorrectly named himself and Broadmoor in his administrative complaint, the parties are to appear (telephonic appearances are acceptable but not preferred) to further argue the issue. The Court invites further citation to authority. If counsel is going to cite to new authority, counsel shall, before the hearing provide opposing counsel with the citations of that ...

Excerpt: ...s that this is actually the Second Amended Complaint. Nevertheless, since the parties refer to it as the Fourth Amended Complaint, the court likewise refers to this pleading as the Fourth Amended Complaint (“FOAC”). (2) Defendant requests judicial notice of the following documents filed in this action: (a) the FOAC; (b) the Order on the Demurrer to Complaint; (c) the Order on the Demurrer to the First Amended Complaint; and (d) the First Amen...

Excerpt: ...ement (see Code Civ. Proc. § 437c(b)(3)), the Court finds that Plaintiff has not met his initial burden under § 437c, and thus the motion must be denied. In this case, Plaintiff and Defendant were are former spouses. Prior to their marriage, Plaintiff's mother loaned the couple $100,000 to purchase a home. Plaintiff claims that the parties executed a note for the loan, which note Defendant denies signing. The parties forgot about the note for o...

Excerpt: ...Defendants' Evidence as to Exhibits A, B, G are OVERRULED. Plaintiffs' objections to Exhibits J and K are SUSTAINED based on hearsay. The standards for summary judgment are well‐known and the Court will not repeat them here. BACKGROUND FACTS It is undisputed that on May 31, 2013, Plaintiffs purchased a BMW from defendant Peter Pan Motors, Inc. UMF No. 1. Thereafter, on November 3, 2015, the National Highway Traffic Safety Administration (“NHT...

Excerpt: ...nd failing to cap the gas pipe that led to the dryer was not the legal cause of the explosion and fire that injured plaintiffs. See defendants MPA at 8:1‐3. On October 30, 2019 plaintiffs filed a statement indicating they do not oppose the motion. The unopposed motion is granted. Defendants have met their moving burden under CCP §437c(p)(2). The declaration of mechanical engineer Steve Virostek states that, in his professional opinion, the lea...

Excerpt: ...pel Further Responses to Request for Production Number 53 and Request for Sanctions against Plaintiff Proud Thai Massage LLC (“Plaintiff”) is GRANTED in part. Defendant demonstrates good cause for the production of the QuickBooks. TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448. Plaintiff, through the declarations of Alexander Mayer and Amira Sharon, demonstrates that the QuickBooks contain confidential information no...

Excerpt: ...des the threshold issue of the arbitration agreement's enforceability, and the scope of the issues to be arbitrated. However, parties may delegate resolution of those threshold issues to an arbitrator as long as the parties' agreement “clearly and unmistakably” delegates that authority to an arbitrator, and the delegation clause is not invalid on state law grounds such as fraud, duress or unconscionability. Pinela v. Neiman Marcus Group, Inc....

Excerpt: ...October 28, 2019. The principal amount of Judgment shall be $21,750.00. B. Prejudgment Interest Defendants defaulted on the $5,250 payment that was due September 1, 2019. For the September 2019 payment Defendants paid $2,500 on October 4, 2019. Plaintiff subsequently agreed to accept $1,000 per week. Defendants made two $1,000 payments. The next payment was due October 28, 2019, but Defendants made no more payments. An “Event of Default” occu...

Excerpt: ...udication, a plaintiff has met its burden of showing that there is no defense to a cause of action if that party has proved each element of a cause of action to entitle the party to judgment on the cause of action. (C.C.P. § 437c(p)(1).) Once the plaintiff has met its burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) Plaintiff prese...

Excerpt: ... Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts apply such a liberal policy at any stage of the proceedings, up to and including trial. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) If the motion to amend is timely made and granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal results in a party being deprived of the right to assert a meritorious cause of...

Excerpt: ...ls as a matter of law because negligence per se is an evidentiary presumption and not a separate cause of action; 2. Plaintiffs' Cause of Action Nos. 3 and 4 predicated on violations Placer County Building Code, Article 15.12 et seq., fail as a matter of law because Article 15.12 was unenforceable at the time of the incident; 3. Even if Plaintiffs' negligence claims survive Article 15.12's unenforceability, Plaintiffs lack sufficient evidence to ...

Excerpt: ...ot allege any property damage or personal injury. Demurrer to the second cause of action (breach of contract) is SUSTAINED with leave to amend. First, the pleading identifies two contracts in paragraph 6, but nothing in the pleading alleges whether either contract was oral, written, or implied. Second, the pleading does not allege the contractual obligations that were breached; it does not allege the terms of the contract either in haec verba or ...

Excerpt: ...ART. Cross‐Defendants establish that the subpoena served by Cross‐ Complainants Omer Tamturk and the Erler Family Trust (“Cross‐Complainants”) on Stefan Financial, includes documents that contain Cross‐Defendants' personal financial information and tax returns. (See Stefan Decl.) The California Constitution, Article I, section 1 protects a person's financial privacy. See also Britt v. Superior Court (1978) 20 Cal.3d 844; Cobb v. Sup. ...

Excerpt: ...ND. The complaint is based on Defendant's alleged representation that it would try to gain US Customs approval for the same 5.92 percent customs rate for SINO‐MAPLE, but failed to do so. Nothing in this claim suggests that the acts were fraudulent, unlawful, or unfair (as that term is used in the UCL), including there is no allegation of any law that was violated. Plaintiff's conclusory allegation in paragraph 69 are insufficient. Defendant's a...