Excerpt: ...‐531589. A Tentative Statement of Decision was issued in case PRO‐ 122577 on December 17, 2018. Objections to that Tentative Statement of Decision were overruled and a Final Statement of Decision was issued on March 14, 2019. The only reason that a Judgment has not yet been entered in Case PRO‐122577 pursuant to the terms of the Final Statement of Decision is that the attorneys who represent Carleen Whittelsey in Case PRO‐122577, the same...

Excerpt: ... to “indulge every intendment to give effect to such proceedings.” Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9. Defendants have established the existence of an arbitration agreement, and there is no basis to deny enforcement of the agreement under CCP § 1281.2. Plaintiffs contend Defendants' motion should be denied because (1) Defendants failed to present competent evidence showing the existence of valid arbitration agreements, and (2) ...

Excerpt: ...licies favor of arbitration and, courts are to “indulge every intendment to give effect to such proceedings.” Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9. Defendants have established the existence of an arbitration agreement, and there is no basis to deny enforcement of the agreement under CCP § 1281.2. Plaintiffs contend Defendants' motion should be denied because (1) Defendants failed to present competent evidence showing the existenc...

Excerpt: ...gations that have been voluntarily assumed.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Cross‐Defendant Salamakhin has purposefully availed himself of the benefits of the laws of the state of California and created sufficient minimum contacts with the state of California to support personal jurisdiction of this Court by sending a debt collection letter to Cross‐ Complainant which is the subject of the allegations in the First...

Excerpt: ...nts have submitted 19 exhibits, consuming approximately 400 pages. Plaintiffs have submitted 13 exhibits across more than 200 pages. Both parties failed to comply with the Rules of Court that require exhibits to be tabbed. (CRC Rule 3.1110(f)(3). Rules of Court have the force of law to the extent that they are not inconsistent with legislative enactments and constitutional provisions. (In re Richard S. (1991) 54 Cal. 3d 857, 863.) By failing to c...

Excerpt: ...��Car, Inc. (“Defendant”) on non‐party Hertz Corporation (“Hertz”). Plaintiff argues that Defendant failed to obtain a commission to conduct an out‐of‐state deposition. Specifically, Plaintiff contends that Hertz is a Delaware corporation with its principal place of business in Florida, and thus a commission is required to depose Hertz. Plaintiff has not provided any evidence in support of this contention though. Moreover, Defendant...

Excerpt: ...entry of the order. Interrogatory No. 19 asks Defendant/Cross‐ Complainant Dellanini to identify each instance in which he solicited work for himself or on behalf of TCS while he was employed by Preferred. The request appears to be directed at a core issue in this case – whether Dellanini improperly competed with Preferred for commercial cleaning jobs. Although Dellanini asserted a number of boilerplate objections to the request, the primary ...

Excerpt: ...ning unusual maintenance and consultant's fees, and the prayer for professional and technical fees, is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff fails to oppose the motion as to these fees, and thus has not established she will be able to amend to allege facts to support she may recover these fees. The Motion to Strike paragraph 50 and the prayer for exemplary and punitive damages is GRANTED WITH LEAVE TO AMEND. As pled, Plaintiff fails to allege...

Excerpt: ...udgment in the amount of $10,000, less any amounts which BRUCE TASSI has paid (Defendants TASSI, INC. and BRUCE TASSI assert that $6,000 was paid on March 27, 2019, but provide no evidence of that fact and admit that the payment was late). Plaintiff is also entitled to $1,500 in attorneys' fees, $60 in costs for the cost of the motion, and pre‐judgment interest. Even though Plaintiff has not submitted facts, such as his counsel's hourly rate or...

Excerpt: ...to the credentialing of Scott Chang, MD is GRANTED and the deponent shall appear for deposition within 15 days of the date of the service of notice of ruling. Plaintiff's motion to compel production of documents is DENIED without prejudice. CCP § 2025.410 provides, in pertinent part, as follows: (a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity un...

Excerpt: ... unless it finds that an objection to the request was sustained, the admission was of no substantial importance, the responding party had reasonable ground to believe that the party would prevail on the matter, or there was a good reason for the failure to admit. (Id. sect. 2033.420, subd. (b).) The moving party is only entitled to the reasonable expenses, including attorneys' fees “incurred in making the proof, i.e., proving the matters denied...

Excerpt: ...he offer. (See Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791.) Defendants' offer does not identify which Plaintiff to whom it is made. To the extent Defendants intended the offer to be made to Plaintiffs UHI and Lavine jointly, it is ineffective. Either Plaintiff's or both Plaintiffs' failure to accept the offer does not support a motion for post‐offer costs under Code of Civil Procedure section 998. If the tentative ruling is uncontested,...

Excerpt: ...elements of a breach of contract claim are: (1) the existence of the contract; (2) plaintiff's performance or excuse for failing to perform; (3) the defendant's breach; and (4) plaintiff's damages. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.) This claim alleges that Plaintiff and Defendant Palermo entered into an oral and written contract. (Complaint ¶ 52.) Plaintiff fails to allege sufficient facts to support either an...

Excerpt: ...ot required when the claim arises from an allegation that the foreclosing defendant failed to comply with the requirement of contacting the borrower before recording Notice of Default. (Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 225–26.) The basis of Plaintiff's claim is the allegation that Defendants did not contact him before initiating foreclosure proceedings. (Complaint para. 16.) Since the complaint is based on the allegation of...

Excerpt: ...ought, the Memorandum of Points & Authorities argues that the Court may dismiss or strike the Complaint when it fails to allege facts sufficient to state a cause of action against a particular defendant, or where there is a lack of subject matter jurisdiction, citing Code Civ. Proc. §§ 437c – 439. These are the Code sections pertaining to motions for summary judgment and motions for judgment on the pleadings. As the moving papers do not inclu...

Excerpt: ...means to protect the privacy interest. Absent sealing, the private information would be publicly available. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for petitioner County of San Mateo shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who hav...

Excerpt: ...rt finds the New Hampshire forum selection clause in the parties' arbitration agreement is unconscionable, and thus unenforceable. The remainder of the parties' arbitration agreement, however, is valid and unenforceable. As set forth in Defendant's moving papers and not disputed by Plaintiff, California, New Hampshire, and federal law all favor the enforceability of arbitration agreements. See, e.g., California Arbitration Act (“CAA”), codifi...

Excerpt: ... as a matter of law. Code Civ. Proc. § 437c(c). Specifically, Defendant is unable to establish the assumption of risk doctrine as a complete defense to Plaintiff's First cause of action for negligence. Defendant contends that her admitted conduct of cutting across the jumping lanes in the warm‐up arena, approaching Plaintiff from behind without warning, and bringing her horse into close proximity with Plaintiff's horse was within the range of ...

Excerpt: ....2 in that the Motion alleges the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy. The Court therefore will treat the Motion as a petition to compel arbitration and motion to stay the action pending arbitration. The Court finds that an agreement to arbitrate exists based on the parties' agreement that the credit agreement underling this action contains an arbitrat...

Excerpt: ...ummary adjudication. A summary judgment may be granted where it is shown that either the action has no merit, or that there is no defense to the action or proceeding. (Code of Civ. Proc. § 437c(a).) The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code of Civ. Proc. § 437c(c).) Thus, if one single material fact is d...

Excerpt: ...efects, however, as there are more significant reasons the motion must be denied. The request for relief under Code Civ. Proc. § 663 lacks merit. Plaintiff seeks relief from an Order sustaining a Demurrer. As noted in the Opposition and not addressed in any Reply, a motion to vacate judgment under § 663, subdivision (1) may only be brought when the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts f...

Excerpt: ... client in the same “or a substantially related matter” if the lawyer received information from the prospective client “that could be significantly harmful to that person in the matter.” (Rules of Prof. Conduct, Rule 1.18(b), (c).) Here, Plaintiff does not sufficiently demonstrate that the alleged confidential information shared with Perkins Coie during a May 4, 2017 telephone conversation involves the same or “substantially related mat...

Excerpt: ...nd claims was, and still is, the rightful owner of the membership interest in 1893, and was and still is, entitled to the possession of the following personal property: the membership interest in 1893.” [4ACC, ¶ 68] Under this cause of action, the complaint further alleges the Ceccatos intended to “convert 1893's membership interest for themselves.” [4ACC, ¶ 70] The complaint states, “As a direct and proximate result of Ceccato and Mont...

Excerpt: ... party in interest, it does not have standing to seek costs. Because the named Defendant is deceased, counsel cannot act on his behalf to seek costs. As the moving papers note, it is wellestablished that “The authority of an attorney necessarily ceases with the death of the client, for no one can act for a dead man. After the death of the client, his attorney therefore becomes a stranger to the proceedings.” Swartfager v. Wells, 53 Cal.App.2d...

Excerpt: ...low, the Court cannot resolve these disputed issues as a matter of law. First, the record contains sufficient evidence of negligence to withstand summary judgment/adjudication. The underlying facts appear largely undisputed. Defendants represented Plaintiffs/sellers in two 2012 real estate transactions, the first of which fell through. In the first transaction (involving potential buyer McLaughlin), Defendants received and reviewed a preliminary ...

Excerpt: ... petitioning activity. Plaintiff's complaint alleges an unlawful detainer cause of action based on failure to pay rent and failure to cure following notice of default. Defendant's declaration asserts that “this lawsuit is a retaliatory eviction lawsuit for expressing my First Amendment right for free speech in connection with the public interest after I called the police and reported Mr. Victor Scheff for yelling into my face from a close dista...

Excerpt: ...CrossComplainant McLean's contention, the mandatory provision of § 473(b) does not require a showing of excusable neglect. Further, even had there been no attorney declaration, Abaunza's own neglect/failure to timely respond to the Cross‐Complaint after his attorney withdrew was excusable. After Mr. Hecht substituted out of the case on 10‐25‐18, Abaunza obtained new counsel within about four months, who promptly sought relief from the defa...

Excerpt: ...asserted in Raval v. Wells Fargo Bank, San Mateo County Superior Court case number 18 CIV 00308, or are based on the same primary rights that were asserted in case number 18 CIV 00308. The plaintiffs and the demurring defendants in this action are identical to the parties in the prior action. The prior action ended with Judgment of Dismissal against Plaintiffs after demurrer was sustained without leave to amend. The judgment in that action is fin...

Excerpt: ...wing that the relevant portions of the complaint arise from protected freedom of petition or free speech activity under the United States Constitution or the California Constitution in connection with a public issue pursuant to Code of Civ. Proc. Section 425.16(b)(1). If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling fo...

Excerpt: ...conduct business in California under that name. It has no bearing on whether Plaintiff has capacity to sue or defend, nor does it bear on whether Plaintiff was the legal owner of the vehicle. B. Plaintiff Fails to Show Probable Validity of Its Claim. To obtain writ of possession, the applicant must show that he or she (1) has the right to immediate possession of tangible personal property; and (2) the property is being wrongfully withheld by defe...

Excerpt: ... incur legal expenses in his defense, the Court finds the evidence here insufficient to justify a fee award. Lopes argues he was falsely accused of threatening to kill Petitioner and ultimately “prevailed on the merits.” The Minute Order for the 02‐15‐19 hearing indicates that no one (no party and no attorney) showed up for the hearing. Thus, the Temporary Restraining Order (TRO) dissolved because no one appeared – not because of any va...

Excerpt: ...eir capacity as cross‐defendants. However, the court's records reflect that Cross‐Defendants' defaults have been entered. Furthermore, Sha has not provided evidence sufficient to establish that the underlying discovery was properly served on Cross‐ Defendants. The declaration of Carmen Aviles merely states she served the discovery on July 19, 2018. No further information is provided such as method or location of service. If the tentative ru...

Excerpt: ...ion on the grounds that “Plaintiff has undergone three major surgeries relating to Crohn's and cancer, with a fourth surgery currently scheduled and longterm health issues leading up to these surgeries that indeed not only made it “‘impractical,' but ‘impossible,' to file an at‐ issue to proceed with this case at this time.” Notably, Plaintiff's “declaration” is not made under penalty of perjury and, therefore, does not constitute...

Excerpt: ...rsuant to Code Civ. Proc. §664.6. The motion appears to have merit. The Opposition only argues the Court lacks jurisdiction because Plaintiffs filed a 10‐29‐18 Request for Dismissal without requesting that the Court retain jurisdiction to enforce the Settlement Agreement. That issue, however, is now moot because the Court is granting Plaintiffs' related Motion for Relief from Dismissal under Code Civ. Proc. §473(b). The Opposition does not ...

Excerpt: ...al, filed 02‐14‐19, is GRANTED. Code Civ. Proc. §473(b); Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21; see also The Rutter Group: Civ. Proc. Before Trial, §12:982 (“Where a settlement agreement provides the court may retain jurisdiction to enforce the settlement, but the dismissal fails to provide for retained jurisdiction, plaintiff's remedy is to move to vacate or modify the dismissal under CCP §473(b) for ‘mistake, inadve...

Excerpt: ... state facts sufficient to support a cause of action. The First Amended Complaint fails to allege any facts with respect to Plaintiffs Marquetta Benton and Marquel Benton. Also, the First Amended Complaint attaches the form for one cause of action for general negligence. The elements of a negligence claim are: (1) a legal duty of care toward the plaintiff; (2) a breach of that duty; (3) legal causation; and (4) damages. (Century Sur. Co. v. Crosb...

Excerpt: ...usiness owners policy].” [Opposition, p.11] AMCO notes that “TDIC concedes that its BOP Policy does cover ‘Tenant Improvements and Betterments,'” and asserts that a portion of the sums AMCO paid were for improvements covered by the business owners policy issued by TDIC to Endodontics Associates. TDIC responds that AMCO “has failed to produce admissible evidence supporting such a claim.” [Reply, p.9] It also contends that “the partie...

Excerpt: ...nder CCP §1632. That section provides, in pertinent part, as follows. (b) Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into any of the following, shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract o...

Excerpt: ... Dec. 2015 notifying them of an address change and thereafter had no further interaction with Plaintiff or the court until after judgment was entered against him in early 2018. Defendant concedes he did not notify the court of a change of address, as required by CRC 8.32. By his own account, Defendant intermittently monitored the case on the court's website/docket in 2016 and 2017, but thereafter stopped. Defendant admits he could have contacted ...

Excerpt: ...e section 435.5 is based on an incorrect reading of the Code of Civil Procedure. Moving party's Reply brief contends that the meet/confer requirement is inapplicable because the motion is pursuant to sections 128(a) and 436. Section 128(a) merely identifies the court's general powers; it has nothing to do with a motion to strike. Section 436 authorizes a motion to strike. However, section 435.5 provides that the moving party must meet and confer ...

Excerpt: ...th interests materially adverse to those of a prospective client in the same “or a substantially related matter” if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” (Rules of Prof. Conduct, Rule 1.18(b), (c).) Plaintiff contends that Defendant Chew failed to close escrow on the sale of Chew's property after consulting with Perkins Coie. Plaintiff contends that cer...

Excerpt: ...o the settlement, or (2) had no intention of honoring the terms of the settlement, or (3) allowed the motion to be filed because it intended to cause a delay of the trial or delay performance on the settlement causing additional damage to Elevation.” [MPA, p.3] Elevation, however, has failed to set forth sufficient facts to establish that Terrace acted for the sole purpose of harassment or delay. Counsel for Terrace asserts in his declaration t...

Excerpt: ...ing KW's Demurrer to the fraud cause of action in Plaintiffs' original Complaint, on grounds Plaintiffs had alleged no underlying facts supporting their conclusory allegation that KW ratified/authorized Defendant Yu's conduct (Civ. Code § 2339), and had alleged no facts supporting employer liability under the doctrine of respondeat superior. The 12‐6‐18 Order granted Plaintiffs leave to amend to allege, if they could, a fraud claim against K...

Excerpt: ...1) Defendant entered into an account with Bank of America, (2) Defendant authorized all transactions on the account, (3) the present balance is $5,005.59, and (4) Defendant's last payment on the account was on April 16, 2017. These admissions are sufficient to establish amount of a debt, but not sufficient to entitle Plaintiff to judgment on the pleadings. B. The Motion Fails to Dispose of Any Cause of Action. The complaint alleges three common c...

Excerpt: ... to Evidence Code Sections 403, 702, 1401, and 1402, and California Rules of Court Rule 3.1110(g). The assertion that the March 17, 2015 agreement, including both the English translation and the Chinese language version, was prepared by SUE is not supported by the evidence currently before the court. The remainder of Defendant's evidentiary objections are OVERRULED. Plaintiff's Motion for Summary Adjudication is DENIED pursuant to Code of Civ. Pr...

Excerpt: ...1, is ruled on as follows: The motion to Request nos. 12‐16 is GRANTED. The County establishes good cause for production of these documents. (See C.C.P. § 2031.310(b)(1).) Once good cause is shown, the burden shifts to the responding party to justify the objection. (Kirkland v. Sup. Ct. (2002) 95 Cal.app.4th 92, 98.) Here, Jane Doe #1 failed to oppose this motion, and therefore has not justified her objections. The motion to Request no. 17 is ...

Excerpt: ...detect the wrongful acts of Clark. A. The Proposed Cross‐Complaint Appears to State a Cause of Action. Generally, whether a pleading states a cause of action should be decided by demurrer, not on a motion for leave to file the pleading. For purposes of this motion only, the Court declines to apply the case of Jaffe v. Huxley Architecture (1988) 200 Cal.App.3d 1188. The same court that decided Jaffe later limited that case to its facts. (See Pla...

Excerpt: ...sufficient evidence to establish that Judgment Debtor has the right to any payment from Momentum Auto Group, Inc. and Fairfield CJD, LP. The declaration of Plaintiff's account manager, Pliny Jones, states that declarant is informed and believes that Defendant is entitled to receive income from these entities as an independent contractor based on an internet search performed. However, declarant fails to set forth any facts to support how declarant...

Excerpt: ...ion to Compel Arbitration and Stay Action is DENIED. Plaintiff waived his right to compel arbitration. Plaintiff complied with Code of Civil Procedure section 1281.5 by alleging that he does not waive the right to arbitrate and intends to move, within 30 days after serving the Complaint, to compel arbitration. (Code of Civ. Proc. Sect. 1281.5, subd. (a); see Complaint at 12:13‐20.) Section 1281.5 requires that “within 30 days” after serving...

Excerpt: ...ce of the complaint; it is not enough that the complaint shows merely that the action may be barred. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Here, the statute of limitations bar appears clearly on the face of the Verified Complaint as Plaintiff admits that he waited nineteen years to assert a claim to the Subject Property. The discovery rule does not save Plaintiff's claims. It is the discovery of facts, not their l...

Excerpt: ...RULING: The Motion of Plaintiff Bonnie Rodemeyer (“Plaintiff”) and proposed additional Plaintiffs Kristina L. Nelson, Michael J. Rodemeyer and Edward E. Rodemeyer, III (“proposed Plaintiffs”) to Compel Defendant Jim Heldberg dba Silicon Segway to Serve Verified Answers and for Issuance of Monetary Sanctions is ruled on as follows: This motion purports to be brought by the proposed Plaintiffs, who are not yet parties to this action. Theref...

Excerpt: ...ndant's motion is procedurally defective as it fails to include a copy of the answer or other pleading proposed to be filed in this action. Code Civ. Proc. §473(b). If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice...

Excerpt: ...e of whether the existence of Defendants, who are necessary parties to Plaintiffs' claim for partition, but who are non‐signatories to the arbitration provision of the Bagnarols' LLC operating agreement, precludes the Court from determining that Plaintiffs' claim is subject to arbitration pursuant to the arbitration agreement. Because Plaintiffs have not presented authority indicating that the existence of third parties precludes application of...

Excerpt: ...the entire cause of action for failure to allege the legal description of the property and failure to allege tender of the outstanding debt. The allegation of tender is not excused; Plaintiff fails to allege facts showing that the sale was void. B. Third Cause of Action (Breach of Implied Covenant) Demurrer is SUSTAINED. Of the implied covenant of good faith and fair dealing, the pleading fails to allege a breach. The acts of which Plaintiffs com...

Excerpt: ... Motion of Plaintiff Bonnie Rodemeyer (“Plaintiff”) and proposed additional Plaintiffs Kristina L. Nelson, Michael J. Rodemeyer and Edward E. Rodemeyer, III (“proposed Plaintiffs”) to Compel Defendants Jim Heldberg and Professional Computing Solutions, Inc. dba Silicon Segway (“Defendants”) to Produce Independent Medical Examiner (“IME”) Report is ruled on as follows: This motion purports to be brought by the proposed Plaintiffs, ...

Excerpt: ...019. There are no acts for the Court to compel. The sufficiency of the objections and responses are not at issue in the present motion since the motion is pursuant to Code of Civil Procedure sections 2030.290 and 2031.300 and not 2030.300 or 2031.310. (See Notice of Motion.) Defendant's Motion to Compel Production of Documents is DENIED. A motion to compel production of documents is proper when a party responds that he will comply with the reques...

Excerpt: ... Proc. §1987.1. These subpoenas seek information that is protected by Plaintiff's privacy rights. In Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, the Court barred disclosure of “personnel… or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Id. at 529; see Cal. Const., Article I, §1. Defendants fail to demonstrate a compelling need for the production of these documents...

Excerpt: ...d cause of action against Defendant. All of Plaintiffs' claims against Defendant are barred by res judicata. Res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) Claim preclusion operates as a bar to a second lawsuit between the same parties on the same cause of action. (Id.) The elements for claim preclusion are: ...

Excerpt: ...ngs if “the complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc. § 438(c)(1)(B)(ii). “The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of ...

Excerpt: ...arnered the requisite two‐thirds of the vote to pass, pursuant to Gov. Code §§ 53326(b) and 53328; and (2) Whether the CFD boundary map was fatally defective because it includes “openspace” territory without Plaintiff's consent, in violation of Gov. Code § 53312.18(a). As to the first issue, the Court finds that the City was not a qualified landowner for purposes of voting in the special election. The City acknowledges that it voted its ...

Excerpt: ...owledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363). Fraud must be pled with specificity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The plaintiff must allege facts which show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) Here, Plaintiff fails to allege facts sufficient to support a claim f...

Excerpt: ...ED. All requests for judicial notice are GRANTED. This matter was originally heard on January 24, 2019 at which time the court continued the matter to March 7, 2019 and ordered defendant Suzie Investments, Inc. to comply with CCP §430.41(a)(3) by filing the declaration required by that statute. The Second Declaration of Seth Weiner in Support of Demurrer to Complaint filed on February 1, 2019 satisfies the statute, so the demurrer may now procee...

Excerpt: ...lication for leave to present a claim as contemplated by that section. Indeed, Petitioner does not indicate that “application was made to the board under Section 911.4 and was denied or deemed denied,” as required to obtain relief under Gov't. Code § 946.6. As set forth below, Respondent appears to have waived any defense as to the timeliness of Petitioner's claim pursuant to Gov't. Code § 911.3(b). Petitioner submitted a Government Claim o...

Excerpt: ...tion: (1) Paul McKinnie, et al. v. Phyllis Harrison, et al., Case No. 18CIV04938 (“McKinnie action”), and (2) William Grosso, et al. v. Phyllis Harrison, et al., Case No. 18CIV02540 (“Grosso action”) However, Ms. Harrison has not demonstrated that a transfer order is necessary given that both the McKinnie and Grosso actions were also filed in this court. (See C.C.P. § 403 [“A judge may, on motion, transfer an action or actions from ano...

Excerpt: ...t the sale. As the winning buyer, AJE is the owner of the personal property listed in the UCC‐1 Statements. After the sale, Cross‐defendants remained in possession of the property at the dental office, despite AJE's having purchased the personal property at the sale. AJE estimates that the property is valued at $161,000. Cross‐defendants' Opposition does not contest the estimate. B. Opposing Arguments Lack Merit. NGUYEN contends that the ap...

Excerpt: ...e days before the date a motion to strike must be filed” (Id. sect. 435.5, subd. (a)(2).) The motion to strike must include a declaration setting forth in detail the compliance with section 435.5, or reasons why compliance was not possible. (Id. sect. 435.5, subd. (a)(2) & (3).) Plaintiff's motion fails to comply with these statutory requirements. No declaration is on file. The motion is also possibly untimely. A motion to strike an Answer must...

Excerpt: ... Defendant's business records subpoena, which requests records relating to “treatment for any condition” since July 1, 2010 is overly broad, as it makes no attempt to limit its scope to the conditions alleged in Plaintiff's complaint. The scope of the subpoena shall be limited to records relating to the conditions identified in Plaintiff's complaint, including records relating to the treatment Plaintiff sought immediately following the allege...

Excerpt: ...ons. Under Plaintiffs' reasoning, any litigant could avoid the mandatory 21‐day period merely by waiting until the Court has ruled on a motion and then filing a motion for sanctions. Plaintiffs cite no authority for this interpretation. The interpretation is unreasonable because it would render the waiting period provision meaningless. (See Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274 (statutes must be construed in m...

Excerpt: ...�) Cross‐Complaint, is ruled on as follows: (1) Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication, to the Complaint is DENIED. Plaintiff fails to meet her initial burden of establishing each element of her causes of action. (See C.C.P. § 437c(p)(1).) Plaintiff not only seeks recovery of the possession of the vehicle, but also seeks damages in connection with all three causes of action alleged. (See Third Amen...

Excerpt: ...its entirety. The Complaint alleges claims for open book account, account stated, money lent, and money paid at Defendant's request. (Complaint ¶¶ CC‐1(a) & CC‐1(b).) The motion against the entire complaint can be granted only if it defeats all causes of action. The motion is denied because it fails to dispose of three of the four causes of action. A. The Motion Establishes that Defendant Owes $3,321.48 to Plaintiff for “Money Paid.” Th...

Excerpt: ...Memorandum of Points & Authorities, neither Defendant's Notice of Motion nor the Demurrer itself state that the Demurrer is being brought under Code Civ. Proc. § 430.10(a), which is the subsection dealing with subject matter jurisdiction. Thus, the jurisdiction argument was not properly noticed. Further, the cited authority does not establish that the Court lacks subject matter jurisdiction over this breach of contract claim. The Complaint is no...

Excerpt: ...tter. The Court directs Plaintiffs' counsel to file motions separately in the future. A. BLACK PINE GROUP's Motion to Compel JAMES YOUNG to Produce Documents The motion is DENIED. 1. The motion identifies documents that purportedly have not been produced, but the motion does not indicate whether the missing documents are responsive to any document category. Plaintiff's failure to specify the document categories places the burden on the Court to f...

Excerpt: ...App.2d 194, 197.) The same policy favoring liberality in amended pleadings applies so that all matters in dispute between the parties may be resolved in a single lawsuit if reasonably possible. (Id.) Plaintiffs seek to supplement the Complaint to include allegations of additional trespasses and nuisances that they have discovered since the Complaint was filed. The only prejudice argued by Defendants is that they have already deposed Plaintiffs an...

Excerpt: ...olves the objections to be raised in the motion. §435.5(a)(3) requires the moving party to file and serve with the motion a declaration stating either the means by which the moving party met and conferred and that they did not reach an agreement or that the party who filed the pleading that is the subject of the motion failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. The declaration of Gopal ...

Excerpt: ...18, 19 and 20. As to the Declaration of Gilg, the Court overrules Chantler's Objection 1 and sustains Objection 2. The Court exercises its discretion to not rule on Yeganeh's Objections since none of the matter to which Yeganeh objects was necessary or material to the Court's analysis of the present motion. (See Code of Civ. Proc. Sect. 437c, subd. (q).) B. Issue 1 (Sixth Cause of Action) Plaintiff Chantler's claim for action on a judgment is tim...

Excerpt: ...to bring the instant motion. Moreover, the motion is untimely pursuant to Code Civ. Proc. § 473(b), and the Court has no jurisdiction to consider it. Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36. Even if Mr. Thompson had standing and the motion was timely, it would be denied for lack of merit. Mr. Thompson provides no explanation as to what “mistake, inadvertence, surprise or excusable neglect” resulted in entry of the Court's July...

Excerpt: ...multiple counties, not just where the defendant(s) reside. In breach of contract cases, venue is proper, inter alia, where the contract work is to be performed. Code Civ. Proc. § 395(a). On a motion to change venue, the moving party bears the burden of establishing the facts necessary to justify a change of venue. Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666. The Complaint here alleges the contract was formed in, and perfo...

Excerpt: ...nterrogatories (Set One) within 14 days of this order. Defendant's request for sanctions is DENIED. Allstate's opposition does not respond to the arguments presented in the moving papers, and it is not supported by a declaration signed under penalty of perjury. Allstate's response is also deficient because the attached exhibits are not what they are purported to be in its memorandum in opposition. In any case, Defendant has demonstrated it is ent...

Excerpt: ...ive Order, filed 2‐13‐19, which includes a request for attorney's fees, is GRANTED‐IN‐PART and DENIEDIN‐PART, as set forth below. Plaintiff has not filed any “Opposition” per se, but on 2‐19‐19, filed and served (by regular mail) a document stating Plaintiff “Objects” to the DA's Motion to Quash. Even if this document had been formatted and entitled properly, Plaintiff served it by regular mail, which violates Code Civ. Proc...

Excerpt: ...and Bonnie Rodemeyer (“Plaintiffs”) to File Second Amended Complaint is GRANTED IN PART and DENIED IN PART. Defendants Professional Computing Solutions, Inc. dba Silicon Segway and Jim Heldberg (“Defendants”) ask that this motion be denied for failure to comply with California Rules of Court Rule 3.1324(a). While Plaintiffs did not state what allegations are proposed to be deleted and amended, by page, paragraph and line number, Plaintiff...

Excerpt: ...t retained at the time the default was entered cannot be the proximate cause of the entry of default under 473(b).” In that case, the defendants' counsel was not contacted until after default was entered on June 4. Although counsel was retained in August, counsel failed to move to set aside the default before judgment was entered in September. The court concluded that counsel's conduct was not the proximate cause of entry of default because he ...

Excerpt: ...Plaintiff leave to amend one cause of action. Plaintiff then filed a TAC five days after the statutory deadline for filing an amended pleading had expired. Under the circumstances, including the absence of any compelling showing of prejudice, the Court will exercise its discretion and accept Plaintiff's late‐filed TAC. § 473(a)(1). To the extent the County contends the Court lacks discretion to do so, the Court disagrees. Harlan v. Department ...

Excerpt: ...de full and complete responses within 14 days of this order. To the extent Newsweek has already provided the information sought, it may respond accordingly. Structure asserts that Newsweek has waived objections for failure to respond to the discovery requests by October 2. The court agrees. With respect to this issue, however, the court notes that Structure refused to grant any extension for responding to its discovery requests. Further, during t...

Excerpt: ...d on “the judgment debtor” and “all members” of the LLC in which the judgment debtor purportedly owns an interest. (Code of Civ. Proc. § 708.320(a).) The Proof of Service does not show that this motion was served on Judgment Debtor METAMINING, INC., or on any members of Spiro Mining, LLC, or Coal Creek, LLC. It shows service on the LLCs, but the statute requires service on the LLCs' “members.” This defect in service was pointed out i...

Excerpt: ...x months. Second, defendant has not provided a proposed responsive pleading as required by the statute. Finally, defendant has not offered evidence to support a finding that the default was entered as a result of her mistake, surprise, inadvertence of excusable neglect. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling ...

Excerpt: ...laintiff's objection to Defendant's purported attempt to file a moving Memorandum of Points and Authorities of excessive length by manipulating typeface size and line spacing. (Opp. P&A at 1 and n.1). The Court also notes that Plaintiff's extensive use of footnotes brings her Opposing brief to a word‐count nearly identical to that of Defendant. The motion for summary adjudication is DENIED as to Issues 1, 2, and 3. A. Issue 1 – Damages 1. The...

Excerpt: ...for breach of contract and negligence cannot be established, and Plaintiffs fail to meet their burden of showing the existence of a triable issue of material fact. Code Civ. Proc. § 437c(p)(2); Calvillo‐Silva v. Home Grocery (1998) 19 Cal.4th 714, 735. Moving and opposing papers in a summary judgment motion must be supported by admissible evidence consisting of “affidavits, declarations, admissions, answers to interrogatories, depositions, a...

Excerpt: ...confirming that Petitioner may install and use a second hoist at the south side location originally approved by the Harbor Master on March 28, 2014, this issue is DENIED AS MOOT. Petitioner acknowledges in its moving papers that at their October 17, 2018 Board meeting, “Respondents voted on a resolution authorizing Three Captains to install its second hoist and directing their General Manager to take all actions necessary to give effect to the ...

Excerpt: ...ion in Plaintiff's complaint are OVERRULED. Plaintiff's complaint properly asserts accounting as an alternative theory to his cause of action for breach of contract. California recognizes a cause of action for constructive trust. Michaelian v. State Comp. Ins. Fund, 50 Cal.App.4th 1093, 1114. Plaintiff is granted leave to amend the complaint within ten days of this order. If the tentative ruling is uncontested, it shall become the order of the Co...

Excerpt: ...led to comply with CRC 3.1350(b), which requires that “[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Defendants have not repeated the noticed issues verbatim in their separate statement. Further, Defendants have noticed and briefed issues, relating to Plaintiffs' c...

Excerpt: ... resolve the objections to be raised in the demurrer. The declaration of Candace Shirley states only that a letter was sent to plaintiff's counsel. Consequently, the hearing on the demurrer is CONTINUED to March 27, 2019 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer. The demurring party is required to file, no later than 7 days prior to the new hearing date, a code‐compliant declaration stating either (1)...

Excerpt: ...hus should not be allowed to recover attorney's fees for their time.” Opposition, p.4. Cross‐Defendant NAS, however, is not an attorney and did not represent itself. Cross‐complainant provides no authority supporting apportionment of fees between attorney and non‐attorney parties when those parties jointly file and prevail on an antiSLAPP motion to strike. See Ramona Unified Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510, 525, 37 Cal. Rptr....

Excerpt: ... a default or default judgment entered against him or her as a result of his or her mistake, inadvertence, surprise or excusable neglect. In this case plaintiff is seeking relief from a default judgment entered in its favor, not any judgment or order entered against it. Furthermore, there is no showing that the default was the result of mistake, inadvertence, surprise of excusable neglect. The declaration of Nichol Alan De Guzman merely states th...

Excerpt: ...iled to provide the court with evidence of an executed or otherwise binding agreement between the parties. Instead, Plaintiff has provided a one‐page “Membership Application and Agreement” that appears to be an application for an account with Plaintiff. Notably, the application makes no reference to a line of credit. Plaintiff also relies on (1) an unsigned “Open End Loan Plan Agreement and Truth in Lending Disclosure,” and (2) monthly ...

Excerpt: ...ourt previously sustained Ocwen's demurrer to these causes of action and provided Plaintiffs with the opportunity to amend the complaint to plead facts sufficient to state a claim. The court's order provided, in pertinent part, as follows: As to the First Cause of Action for violation of Bus. & Prof. Code 17200, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. This claim is predicated on the alleged HBOR statutory violations and common law claims a...

Excerpt: ...rike that portion of the SAC setting forth a cause of action for negligence is GRANTED. Paragraphs 87 through 107 of the second amended complaint are hereby stricken. Ocwen contends the entire SAC should be stricken because it was not timely filed under operation of CRC 3.1320. The court notes, however, there is a split of authority as to whether Plaintiffs must file a noticed motion seeking permission to file the late pleading, or whether the co...

Excerpt: ...otion for Summary Judgment/Adjudication is GRANTED pursuant to California Rules of Court Rule 2.550(d). Based on the Motion, the document is confidential pursuant to the terms of the parties' discovery stipulation; although it was submitted in support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment/Adjudication, it had limited bearing on the legal issues necessary to adjudication of the motion; and based on those facts, the c...

Excerpt: ...om its making. (Civ. Code sect. 1624, subd. (a)(1).) However, if it is merely unlikely that it will be so performed, or the period of performance is indefinite, the statute does not apply. (Blaustein v. Burton (1970) 9 Cal. App. 3d 161, 185.) The statute of frauds applies only to contracts that “cannot” be performed within one year. (Hollywood Motion Picture Equip. Co. v. Furer (1940) 16 Cal. 2d 184, 187.) Even though a promise may not by its...

Excerpt: ...NIED. Defendant brings this motion under Code of Civil Procedure section 473.5, or alternatively, under Code of Civil Procedure section 473(d). Defendant seeks to set aside the default and default judgment for possession entered on March 7, 2017, and the default judgment for money entered on May 8, 2018. Plaintiff argues that the motion is untimely because Defendant failed to bring it within 180 days after service on Defendant of written notice t...

Excerpt: ... a married spouse of the injured plaintiff or to his or her registered domestic partner. (CACI 3920; Fam. Code sect. 297.5, subd. (c). Plaintiff's reliance on the Butcher case is unpersuasive; the Supreme Court rejected Butcher for the proposition cited by Plaintiff. (See Elden v. Sheldon (1988) 46 Cal.3d 267, 277, 279‐80.) Plaintiff LOPEZ does not allege that she is the spouse or registered domestic partner of Plaintiff ALFARO. Plaintiff LOPEZ...