Excerpt: ...cted with the requisite intent to cause damage to Plaintiff. See CACI No. 1320. Defendant Michael Solomon's Demurrer to the “motor vehicle” negligence cause of action is OVERRULED. Plaintiff has asserted factual allegations in the Complaint sufficient to constitute a cause of action for motor vehicle negligence. Though the allegations are contained in an attachment labeled “general negligence,” Plaintiff's form Complaint asserts only inte...

Excerpt: ... an open book account and an account stated. However, Plaintiff also asserts claims for goods sold and delivered and credit extended on account. The alternative Motion for Summary Adjudication is GRANTED as to the claim based on an open book account. Plaintiff has met its burden to show that there is no defense to this cause of action. CCP §437c(p)(1). See Undisputed Material Facts 1‐8; LaRosa Declaration ¶¶5 ‐8, 10‐12 and Exs. A‐C. Th...

Excerpt: ...ny cause of action and also cannot be determined at the demurrer stage. The Court has jurisdiction over the case because Business & Professions Code section 6200 et seq. does not divest the Court of jurisdiction to hear the case. Business & Professions Code section 6201 provides: “[A]n attorney shall forward a written notice to the client prior to or at the time of service of summons or claim in an action against the client.... The written noti...

Excerpt: ...tered a dismissal he signed, which requested dismissal of the ‘Entire action of all parties and all causes of action.” The filing of a dismissal has immediate effect, rendering subsequent proceedings void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931. The dismissal has caused confusion since only Xie signed it. It may be that this dismissal was meant to dismiss plaintiff Wang's claims, but there is no evidenc...

Excerpt: ...ovember 12, 2019, ruling, Defendant previously moved to set aside the default and default judgment entered against her on March 2, 2009 on the basis that she was never served with the summons and complaint. Judge Brown denied the motion without prejudice on September 23, 2019. Defendant then moved to set aside the renewal of judgment on the basis that she did not receive notice of the Notice of Renewal filed on March 19, 2018. Defendant made her ...

Excerpt: ...proposed order, submitted with its moving papers on April 23, did not specify whether the action is dismissed with or without prejudice. The court's tentative ruling granting Defendant's motion also did not state that the matter was dismissed with prejudice. Defendant points to the following portion of the transcript from the July 8 hearing on the motion to dismiss or stay as support for its request that the matter be dismissed with prejudice: TH...

Excerpt: ...t (1) Plaintiff is limited to the exclusive remedy of workers' compensation benefits, and that under Privette v. Superior Court (1993) 5 Cal. 4th 689, Plaintiff is precluded from recovering against KENMARK, the hirer of a contractor, and (2) the evidence does not support the “retained control” exception to Privette. Privette does not apply to this case because Plaintiff's employer, CBC, is not the contractor whose negligence is alleged to hav...

Excerpt: ... motion to preclude a res ipsa loquitur instruction lacks merit. (The purpose behind this portion of the motion is unclear because even if res ipsa loquitur does not apply, that does not dispose of the entire cause of action.) “There can be no doubt that the doctrine of res ipsa loquitur is applicable to a factual situation involving injury resulting from the collapse of a scaffold.” (Biondini v. Amship Corp. (1947) 81 Cal.App.2d 751, 767.) R...

Excerpt: ...dure section 473 where it is clear from the face of the record that the judgment should not have been entered; however, a judgment valid on its face but void for improper service is governed by analogy to Code of Civil Procedure section 473.5 and therefore relief in the same action must be sought no later than 2 years after entry of the default judgment. (See Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121‐1122.) Defendant contends here tha...

Excerpt: ... 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 action. (...

Excerpt: ...yd J. DeMartini (“DeMartini”) for Summary Judgment, or in the Alternative, Summary Adjudication, on the First Amended Complaint (“FAC”) of Plaintiff Fuentebella Enterprises, LLC (“Fuentebella”) is ruled on as follows: (1) DeMartini's and Fuentebella's Requests for Judicial Notice are GRANTED. (2) For purposes of a motion for summary judgment/summary adjudication, a defendant has met his or her burden of showing that a cause of action ...

Excerpt: ...DIN‐PART and DENIED‐IN‐PART. The request for terminating and issue sanctions is DENIED. The request for evidentiary and monetary sanctions is GRANTED‐IN‐PART, as set forth below. These consolidated cases arise from a cancelled real estate sales transaction involving the Love Cross‐Complainants' property in East Palo Alto. After the prospective sellers (the Loves) refused to sell the property as contemplated by the Listing Agreement, t...

Excerpt: ...tion that an equitable lien survived the statute of limitations bar is contrary to current law, Cal. Civ. Code § 882.030, and Plaintiff fails to address all evidentiary issues concerning Mr. Goldstein's Will. Moreover, Plaintiff's assertion that Plaintiff and Option One lacked actual knowledge of the vesting issue does not refute the evidence demonstrating that Option One was on notice that Defendant was a record owner of the subject property as...

Excerpt: ...se attachment is purely a statutory remedy, it requires strict construction with the statutory requirements. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1107; Code Civ. Proc. § 482.030 (the Legislature directed the Judicial Council to promulgate forms to implement the attachment law). First, Plaintiff did not serve Notice of the Application and hearing using Judicial Council Form AT‐115 (“Notice of Applicat...

Excerpt: ...$6,217,681. Ms. Dolch has not provided declarations or documentary evidence supporting the probable validity of her underlying claim or the amounts sought in the application. Rather, she relies on her verified § 850 Petition to support the application. According to the § 850 Petition, In December 2016, Angelique escorted Nellie to a Charles Schwab office and, without Bob's knowledge or consent, transferred more than $1.5 million of community pr...

Excerpt: ...causes of action in Plaintiff's Complaint. Additionally, triable issues of material fact exist as to whether a union member who receives a discharge letter may always remain on the job (SSUMF 12/14; O'Mahony Decl. for Defendant, vs. Bourn Decl. Exhs. J, K and Chinn Depo. pp. 29:9‐30:2 and Woulfe Depo. pp. 40:8‐24 for Plaintiff); whether UPS Labor Relations pursued Barefield's termination for the June 15, 2016 incident (SSUMF 19; Woulfe Decl. ...

Excerpt: ...on alleging a violation of Civ. Code § 2923.6 (“dual‐tracking”), the Motion for Summary Adjudication is DENIED. The parties agree that the version of § 2923.6 in effect in 2017 barred a foreclosure sale while a complete loan modification application was “pending.” Ocwen argues there was no pending application at the time of the 7‐20‐17 sale. Ocwen points to documentary evidence showing that from Nov. 2016 to May 2017, Ocwen denied...

Excerpt: ...ourt found that “it was the intention of the parties to the contract between [attorney] Dunnigan and Max Orloff that said Max Orloff should not have the right to settle or dismiss or compromise the aforementioned actions without the consent of his attorney, and that, if said Orloff did so dismiss said actions, he was required to pay as a penalty therefor the sum of $1,000 to his said attorney.” Id., at 747. The trial court found this provisio...

Excerpt: ...roc. § 430.10(e). As an initial matter, Code Civ. Proc. § 1005 requires service of Opposition briefs either by personal service or by means of next‐day delivery at least 9 court days prior to the hearing. In this case, it appears Plaintiffs did not serve their Opposition brief at all. There is no Proof of Service on file. WF's counsel apparently became aware of the Opposition by reviewing the Court's docket online. Plaintiffs' violation of §...

Excerpt: ...n in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) In ruling on a motion to strike under this section, the co...

Excerpt: ...ry duties.” According to Defendant, “The gravamen of NAS's cause of action is BAES's alleged violation of the Liquor License Statutes.” MPA, p.11. As a result, Defendant contends Plaintiff's claim is based “upon a liability created by statute,” and the applicable statute of limitations is three years pursuant to CCP § 338. Plaintiff does not dispute that the question of which statute of limitations applies is determined by looking to t...

Excerpt: ...8.50. Per Code Civ. Proc. § 1033.5(a)(10)(A), fees are recoverable as an element of costs where authorized by contract. The Settlement Agreement at issue here includes a fee provision. See 10‐8‐19 Salassi Decl., Ex. A, § 7.12. The claimed fees appear to be sufficiently documented/supported and reasonable. See 10‐8‐19 Decl. of Hannah Salassi and Ex. D‐G. Defendants do not challenge the amount of claimed fees (they do not challenge the ...

Excerpt: ...N should not be part of this lawsuit. Defendants CHANG and CHEN did not enter into any contracts with Plaintiff CAVESTONE, did not make any representations to Plaintiff CAVESTONE that induced justifiable reliance, and did not benefit individually from Plaintiff CAVESTONE.” Reply., p.1‐2. Plaintiff, however, has alleged an alter‐ego theory of liability. According to Plaintiff's complaint, “Defendants, and each of them, acted in concert wit...

Excerpt: ...‐115, which contains all the necessary advisements pursuant to Section 484.050. Although use of the form is optional, Plaintiff's notice includes none of the required information. Second, and more significantly, Plaintiff's complaint alleges breach of contract by Defendant Ye. Plaintiff, however, seeks to attach property owned by Defendant Chen and the Chenye Irrevocable Gift Trust. Plaintiff alleges the property was fraudulently transferred to...

Excerpt: ...d therefore Plaintiff and South Bay Colma LLC are ordered to arbitrate the claims asserted against South Bay Colma LLC in Plaintiff's Complaint. Plaintiff raised a number of arguments as to why the arbitration agreement is unenforceable. First, Plaintiff claims that the arbitration agreement is unconscionable. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2...

Excerpt: ... California. Further, since Blue Bird has no contacts with the state, the Plaintiff has not shown that his claim arises out of or is related to such contacts. (Burger King Corp. v. Rudzewicz (1985) 471 US 462, 477‐78.) The emails attached to Plaintiff's opposing declaration are not authenticated. However, even if the emails were admitted into evidence, they do not show that Blue Bird had purposeful contacts with California. A plaintiff is gener...

Excerpt: ...ircuit Court (Waukesha County), which by all appearances involves substantially the same subject matter. Both Complaints seek a judicial declaration regarding the validity/enforceability of the parties' Consulting Agreement. As the moving party here, Matrix has the burden of proving the parties' dispute would be more appropriately tried elsewhere (in Wisconsin). Plaintiff Time Traveller's choice of forum will not be disturbed unless the Court is ...

Excerpt: ...ttached to the Request for Production” is deficient. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) Plaintiff shall supplement its response to set forth specific responsive facts. Interrogatories 112.2 through 112.5. A response that merely points to another discovery response is deficient. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) Further, as set forth above, the response to Interrogatory 112.1 (to which this response...

Excerpt: ...ation Agreement. The present proceedings are hereby STAYED pending completion of the arbitration. Defendant Dick's has established the existence of an arbitration agreement, and there is no basis to deny enforcement of the Agreement under CCP §1281.2. Plaintiff does not dispute that he signed a binding Arbitration Agreement with Defendant Dick's Sporting Goods or that the claims against Dick's are within the scope of the Agreement. Rather, Plain...

Excerpt: ...r Dismissal on Judicial Council Form CIV‐110, which purports to dismiss the “Entire action of all parties and all causes of action.” The Dismissal was entered that same date, as requested. This Dismissal has caused confusion, however, since only Plaintiff Min Xie signed it. In general, the filing of a dismissal has immediate effect, rendering subsequent proceedings void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d ...

Excerpt: ...he property at 74 New Montgomery is the individual Defendants' “usual mailing address” or “usual place of abode” pursuant to CCP § 415.20. Plaintiff relies on her own declaration, which states that the property “has also been used as [Mr. Saito's] personal residence and corporate office” and that “Mr. Okada has been working and residing at PROPERTY while acting as Saito's business associate in State of California.” Smith Decl., �...

Excerpt: ...on to approve dismissal of the PAGA claim includes a supporting declaration of Plaintiff's counsel, Jeffrey Curtiss, which refers to the Settlement Agreement, but does not include a redacted version of the document as an exhibit. The present motion to seal includes a supporting declaration of Mr. Curtiss, which states only that the Settlement Agreement will be lodged “as Exhibit A to this Declaration.” The Exhibit A is a blank document. Since...

Excerpt: ... 10‐23‐19 Opposition brief was filed on behalf of Ely and Sonia Tangonan, despite its reference to “Cross‐Complainant Mary Pablo,” since no such person is a party to the case. Per the Proof of Service, the Opposition brief was not served on Wells Fargo, the demurring party. For this reason, and because the Opposition does not specifically address the asserted causes of action or any of Wells Fargo's arguments (it merely recites general ...

Excerpt: ... TO AMEND as to all asserted claims. Code Civ. Proc. § 430.10(e). The Court assumes the 10‐23‐19 Opposition brief was filed on behalf of Ely and Sonia Tangonan, despite its reference to “Cross‐Complainant Mary Pablo,” since no such person is a party to the case. The Court notes that except for a couple references to the res judicata defense, the Opposition does not specifically address any of the asserted claims, nor Barrett Daffin's a...

Excerpt: ...anted as to the first cause of action. It is undisputed that, at the time of the 2015 merger, Plaintiff RAI held no shares of H2 Wellbeing Oy. (UMF 8.) Plaintiff argues that “H2H never issued agreed upon shares to RAI, but agreed in writing to issue such shares in the 2011 Agreement and in its modifications” (Opp. to UMF 8) and that “H2H provided assurances that the matter of unissued shares would be addressed.” (Decl. of Rapakko para. 10...

Excerpt: ... Vacate Judgment under C.C.P. section 473(b) is untimely. Defendant seeks relief only under CCP section 473(b) on the ground that default judgment was taken in error against Defendant due to Defendant's mistake, inadvertence, surprise, or excusable neglect. Since judgment was entered in 2009, the motion is untimely under this statute. A motion seeking relief under CCP section 473(b) must be filed within 6 months after entry of default. (See Weil ...

Excerpt: ...o Compel Plaintiff Triple Net Companies, LLC (“Plaintiff”) to Comply with Agreement to Produce Documents, is ruled on as follows: (1) Defendants originally sought to Compel Plaintiff's Compliance with the Agreement to Produce Documents in response to KComm's Request for Production of Documents, Set One. Specifically, Defendants' Motion sought compliance with Request nos. 1, 2, 7, 8, 15‐17, 19‐23, 25‐30, 32‐43, 49 and 54. The court con...

Excerpt: ...aning of the settlement terms agreed to on the record on June 28, 2019. The court should reject the County's proposed Paragraph 17 as an improper attempt to effectively convert the “no professional publicity” term the parties agreed to into a “confidentiality” term that was neither bargained for nor agreed to. The court should instead construe the agreement to “no professional publicity” to prohibit plaintiff and her counsel from util...

Excerpt: ...e as to any material fact and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). Once the defendant has met that burden, the burden shifts to plai...

Excerpt: ...t's duty of loyalty, which if proven would be a fiduciary breach. This claim would be subject to a 4‐ year statute of limitations. Plaintiff knew of the dual agency in October 2015 (Moving P&A at 16; FAC para. 58), which is less than four years before the Complaint filed. Since at least one alleged claim is not time‐barred, the demurrer fails to dispose of the causes of action. 2. Second, Third and Fourth Causes of Action. Demurrer is SUSTAIN...

Excerpt: ... motion earlier. However, under Rule 2.21, any response to an in limine motion may be filed as late as the first appearance in the Department of the Presiding Judge “for trial assignment.” Rule 2.21 implies that in limine motions are brought to the trial judge, not the Law & Motion Department. Plaintiff's argument that an early ruling would eliminate the need of conducting discovery (Reply at 2:26‐28) lacks merit. A plea of nolo contendre �...

Excerpt: ...Interrogatory No. 12.1 (Set One). Although the motion is not captioned as a motion to compel a further response per Code Civ. Proc. § 2030.300, that is the motion's clear intent, and both parties treat the motion as such, and thus the Court deems the motion as seeking to compel a further response to Plaintiff's Form Interrogatory No. 12.1. The motion is GRANTED. The LLC members' names and contact information is discoverable A civil litigant's ri...

Excerpt: ...hey repeatedly refer to the moving Defendants collectively, despite the fact that Defendants are alleged to have different roles in causing the incident in question. Any differences in the analysis with respect to each Defendant is noted below. Gross Negligence The moving Defendants contend, first, that Plaintiff's causes of action for gross negligence must fail “as there is insufficient evidence as a matter of law to establish any triable issu...

Excerpt: ...on. If Plaintiff does not comply, then the Court will strike the motion instead. (Code of Civ. Proc. Sect. 128.7 (“unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party”).) If Plaintiff cures the omission, then the Court will rule as set forth below. 2. Regarding Defendant's citation to People v. Investco Mgmt. & Dev. the Court reminds Defendants' c...

Excerpt: ... CONTINUED to January 17, 2020 at 9 a.m. in the Law & Motion Department to allow Plaintiff time to conduct jurisdictional discovery. Defendants' alternative Motion to Dismiss on grounds of inconvenient forum (forum non conveniens) is DENIED, for the reasons stated below. Personal jurisdiction is determined by evidence, not allegations Without belaboring the issue, the Court notes that when a Defendant challenges the Court's personal jurisdiction ...

Excerpt: ...) the claim upon which the attachment is based is one upon which an attachment may be issued, (2) Petitioner has established the probable validity of her claim (see Code Civ. Proc. § 481.190, “more probable than not…”), (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, and (4) the amount to be secured is greater than zero. Code Civ. Proc. § 483.090(a). Based on the alle...

Excerpt: ...tive ruling, Plaintiffs served a “partial joint response” to Defendants' requests for production. In conjunction with that response, Plaintiffs produced approximately 600 pages of documents. Subsequent to the filing of this motion, Plaintiffs produced approximately 1900 electronic files. In this motion, Defendants emphasize that Plaintiff's production was deficient. According to Defendants, “[Plaintiffs] have disobeyed [the court's July 23]...

Excerpt: ...b)‐16(d) is GRANTED. These costs are barred by the oral settlement agreement between the parties entered into on April 24, 2018. The transcript of the April 24, 2018 hearing shows that Defendant's counsel, Matthew James, stated on the record: …And just so I'm absolutely in an abundance of caution, that the parties are agreeing to incur their own attorney's fees and costs relating to this litigation except as provided for by Mr. Macias [Plaint...

Excerpt: ...aining broadly‐worded arbitration clauses. 8‐16‐19 Maley Decl., Ex. 2 at § 11, Ex. 6. Morales does not appear to dispute that the arbitration clause in one or both of the agreements would apply to her asserted claims against Genesys. However, she contends the agreements are unconscionable and/or voidable under Labor Code § 925, and thus should not be enforced. Because unconscionability is a contract defense, the party asserting the defens...

Excerpt: ... no merit. CCP §437c(p)(2). The complaint asserts causes of action for products' liability based on defective design, defective manufacturing and failure to warn, negligence based on design and manufacturing defects and failure to warn, loss of consortium and negligent infliction of emotional distress. The undisputed material facts and supporting evidence establish the following: Defendant was not involved with the installation of its product. U...

Excerpt: ...nt. The parties to this case are all currently involved in another pending case—an earlier‐filed action in the United States District Court for the Southern District of Indiana, captioned Genesys Telecommunications Laboratories, Inc. v. Talkdesk, Inc. et. al., Case No. 1:19‐CV‐00695‐TWPDML. In the Indiana case, parties Talkdesk, Morales, Strahan, Hertel, and Manno, who are all Plaintiffs in this case and Defendants in the Indiana case, ...

Excerpt: .... I. Issue One – First Cause of Action (Declaratory Relief) The Stadler‐Freeman deed reserved a right of way that is 50‐feet wide, designated for “road purposes and for public utilities.” The reservation does not indicate any specific dimensions for road purposes or for utilities. Certain defendants received easements over the 50‐foot right of way, but Defendants' deeds do not specify any width of their respective easements. Therefore...

Excerpt: ...aint (SAC) is GRANTED. Code Civ. Proc. §§ 435‐437; Civ. Code § 3294. 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. Mere negligence, even gross negligence, is not sufficient. Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894. The law requires that a plaintiff seeking punitive damages prove...

Excerpt: ...ute of limitations defense bars this Cause of Action as a matter of law. Additionally, triable issues of material fact exist pursuant to Code of Civ. Proc. Section 437c as to the substantial nature of alleged stream diversions, including with regard to SSUMF numbers 2, 4, 6, 9, 15, and 16. Plaintiffs' dispute of these facts are supported by the depositions of Deleon, Leicester, Lt. Ober and Randi Adair and the declaration of Crystal Chau. As to t...

Excerpt: ...pposition brief, filed 9‐30‐19. Defense counsel is reminded to comply with the service requirements set forth in Code Civ. Proc. § 1005(b)‐(c) (Opp. briefs must be served by means of next‐day delivery). Plaintiff seeks leave to file a FAC adding a new Defendant (Fidelity National Title Co., or FNTC) and several new causes of action, all based on the alleged non‐disclosure of an additional easement encumbering the property (the “1954 ...

Excerpt: ...other state agencies. Those agencies are not a party to this action. As a result, Defendants must seek the documents through a third‐party subpoena pursuant to People ex rel. Lockyer v. Superior Court, 122 Cal. App. 4th 1060, 1078–80 (2004). Defendants have provided no argument or discussion relating to Lockyer. Defendants contend that, in accordance with CCP § 2031.230, the People are required to indicate whether a diligent inquiry has been...

Excerpt: ...t 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, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties. ...

Excerpt: ...tani et. al.'s express request. See 8‐16‐19 Minute Order. Dattani et. al. has repeatedly represented that this civil case should follow the criminal case. See 8‐22‐19 Wood Decl., ¶6 (“In Dec. 26, 2018 Defendants moved to continue trial, in accord with Defendants understanding that everyone agrees the criminal matter must proceed before the civil matters.”). The criminal case has not yet resolved. Further, Dattani et. al. has not iden...

Excerpt: ...t is GRANTED‐IN‐PART, in the amount of $50,979, which appears to be a conservative estimate of the amount owed. Plaintiff's Application satisfies the requirements of §483.010(a), namely, (1) the claim upon which the attachment is based is one upon which an attachment may be issued, (2) Plaintiff has established the probable validity of its claim (see Code of Civ. Proc. § 481.190, “more probable than not…”), (3) the attachment is not s...

Excerpt: ...hose acts do not constitute “binding the company” or “executing an instrument.” The motion does not demonstrate that Plaintiffs acted in contravention of paragraph 7.10. The motion lacks merit also because Paragraph 7.10 does not entitle a Member to attorney's fees in the present context. The purported “action by the Member” is the signing and filing of the Complaint. However, there is no claim based on that “action by the Member.�...

Excerpt: ...ailure to Pay Wages (Bonus) As noted by Plaintiff, the elements of a cause of action for failure to pay wages are (1) that plaintiff performed work for defendant; (2) that defendant owes plaintiff wages under the terms of the employment; and (3) the amount of unpaid wages. CACI 2700. According to Plaintiff, he has established each of these elements as a matter of law. Plaintiff contends he was entitled to wages pursuant to the terms of the Novemb...

Excerpt: ...riginally named as a defendant in the Complaint, was dismissed from this action without prejudice after he brought a Motion to Quash based on lack of personal jurisdiction. (See court's August 21, 2018 order.) Plaintiff then sought leave to amend to file a proposed First Amended Complaint to add allegations to support that Grecu is the alter ego of Defendant Interstates Vanlines, LLC (“IVL”). Plaintiff's motion was denied without prejudice. (...

Excerpt: ...ct and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). Once the defendant has met that burden, the burden shifts to plaintiff to show that a tr...

Excerpt: ...Defendant expressly agreed in writing that he would pay the County for the treatment and services in accordance with the regular rates and terms of the Medical Center. UMF #3, 4. The County performed its obligations pursuant to the written agreements. UMF # 2. Defendant failed to pay for the medical treatment and services rendered to him, and the County has been damaged in the amount of 22,041.06. UMF # 5‐11. With respect to the claim for servi...

Excerpt: ...Civ. Proc. § 1008(b). On 10‐10‐18, Plaintiff dismissed its entire case against BJ Interstate. Thereafter, on 4‐5‐ 19, BJ Interstate moved for sanctions against Plaintiff under Code Civ. Proc. § 128.5, asserting the same arguments it now rehashes here. BJ Interstate argued in the prior motion, inter alia, that Plaintiff knew or should have known from the day he filed this case, and certainly from the time Plaintiff filed his First Amende...

Excerpt: ...Defendants contend the motion is moot because they provided signed verifications on September 3rd and 4th. Defendants, however, cite no authority in support of their contention that the motion is moot. There is, however, authority to the contrary. In Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants, 148 Cal. App. 4th 390, 408 (2007), the court concluded that untimely service of discovery responses does not deprive the trial cour...

Excerpt: ...y finds this matter involves confidential business plans, valuation and financing strategies, negotiation and collaboration tactics, internal market research, and private corporate structure and financial information. The overriding interest supports sealing the record. The Court expressly finds there is an overriding interest in protecting Defendant's information from public disclosure. A substantial probability exists that the overriding intere...

Excerpt: ...r, have not filed an opposition to Defendant's motion. Accordingly, based on Defendant's moving papers, the motion is granted. If Plaintiffs' papers in support of their request to continue the hearing is to be believed, Defendant has sales representatives based in California, and sells more of the subject airplane to buyers in California than to any other state. These facts, however, were not included in Plaintiffs' declaration in support of the ...

Excerpt: ...nt Christian Giguiere's (“Defendant”) motion to set aside sister state judgment is UNOPPOSED and GRANTED. On March 28, 2019, Judgment was entered against Defendant in the Supreme Court of the State of New York, County of Kings, as Defendant had executed an Affidavit of Confession of Judgment. The Confession of Judgment was signed by one person, Christian Robert Giguiere, on behalf of “Christian Robert Giguiere” and “Christian Giguiere.�...

Excerpt: ...ing resolution of the arbitration is GRANTED. Code Civ. Proc. § 1281.2 et. seq. California law favors the enforceability of arbitration agreements. See California Arbitration Act (“CAA”), codified by Code Civ. Proc. Sect. 1281, et seq.; Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83, 97 (2000). Here, Plaintiff does not dispute that she entered into a binding and enforceable arbitration agreement. See 12‐19‐18 Cap...

Excerpt: ...(See Plaintiff's Statement of Undisputed Facts nos. 1, 3, 4, 6‐8, 10‐13, 15‐17.) Judgment shall be entered in favor of Plaintiff and against Defendant Arleen Gonzales for the principal amount of $32,925.50. Plaintiff also requests court costs of $1,033.00 as part of this motion. Plaintiff filed a Memorandum of Costs on November 1, 2018 at the same time this motion was filed. However, a prevailing party who claims costs must file and serve a...

Excerpt: ...nd Bayview Loan Servicing LLC (“Bayview”) (also collectively “Defendants”) to the Second Amended Complaint (“SAC”) of Plaintiff Mele M. Uperesa (“Plaintiff”) is ruled on as follows: (1) Demurrer to the Second Cause of Action for Cancellation of Instruments is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. This claim is alleged against MERS and BONYM. Plaintiff seeks to cancel wr...

Excerpt: ...920, 939. The improperly‐served Opposition (see Code Civ. Proc. § 1005(b), requiring service by overnight delivery), does not dispute that joining the proposed new defendants is proper, and does not identify any meaningful prejudice or other basis for disallowing the proposed TAC. Defendant questions the viability of the proposed new claims for “nuisance per se” and “interference with easement,” and the punitive damages claim against t...

Excerpt: ...o each request for production of documents with (1) a statement that the party will comply; (2) a statement that the party lacks the ability to comply; or (3) an objection. Code Civ. Proc. § 2031.210.  Where a statement of compliance is made, the party must state whether it will comply with a demand in whole or in part, and that all documents or things in the demanded category that are in the possession, custody or control of the party will b...

Excerpt: ...le, or (3) identify the extent of the relief requested; i.e. what specific performance is sought by court order. In any case, however, the court finds that the contractual provision at issue is inscrutable. The disputed language provides: The valuation shall not include any discounts including discounts for lack of control or lack of marketability of the interest in the LLC, though the appraiser may consider discounts if necessary to be considere...

Excerpt: ...��) of Plaintiff Sean Bugayong (“Plaintiff”) is ruled on as follows: Demurrer to the First Cause of Action for Fraud by CalCare is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support this claim. Fraud against a corporation requires pleading facts that allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when i...

Excerpt: ...t is GRANTED. With respect to this cause of action, Masoli alleges that “Cross‐Defendants failed to send Cross‐Complainant a Notice of Intention to Sell Repossessed Vehicle that truthfully and accurately set forth ‘all the conditions precedent' to reinstatement of the Retail Installment Sale Contract in violation of Cal. Civil Code § 2983.2(a)(2).” Cross‐ Complaint, ¶ 69. Masoli, however, does not allege or explain how the notice, w...

Excerpt: ...ded Complaint (“FAC”) of Plaintiff Sean Bugayong (“Plaintiff”) is ruled on as follows: Motion to Strike the Claim for Punitive Damages in paragraph 65 of the FAC is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff agrees to withdraw this claim for punitive damages. Motion to Strike the Prayer for Damages in paragraph 4.a of the FAC is GRANTED WITH LEAVE TO AMEND. For the Fourth Cause of Action, Plaintiff seeks “[d]amages for loss of earnings, ...

Excerpt: ...cessary to prove his one‐line allegation that “at all relevant times, LOSK and HDC were alter egos of each other.” (Complaint ¶7.) Under California law, to invoke the alter ego doctrine, a plaintiff must show (1) that there is such a unity of interest and ownership that the separate personalities no longer exist, and (2) if a separate corporate existence is acknowledged, an “inequitable result” will follow. Automotriz v. Resnick (1957)...

Excerpt: ...ncurred a negative balance of $7,583.78 as of 12‐ 27‐16, and breached the agreement by failing to pay the amount owed. The burden shifted to Defendant to come forward with evidence creating a triable issue of fact as to the asserted claims, which Defendant has not done. The motion is unopposed, and none of Plaintiff's asserted material facts is disputed. Plaintiff must seek costs and attorney's fees via a post‐Judgment Memorandum of Costs a...

Excerpt: ...l causes of action alleged against the moving party. As set forth below, the motion does not dispose of all of Plaintiff's claims. B. Objections to Evidence. The Court exercises its discretion to not rule on Safeco's objections. None of the evidence to which Safeco objects was material to disposition of the motion. (Code of Civ. Proc. Sect. 437c, subd. (q) (court need rule “only on those objections to evidence that it deems material to its disp...

Excerpt: ...e years of seizure of the property as required by Health & Safety Code §11488.4(i)(3). As a result of the order deeming facts to be admitted, interested party admitted that Case No. 16‐NF‐ 014461‐A is the underlying and related criminal case within the meaning of Health & Safety Code §11488.4(i)(3). Petitioner offers no evidence of a conviction in that case. While petitioner provides evidence of a conviction in a different case, that conv...

Excerpt: ... sufficient evidence to determine that the settlement is within the range of the settling defendant's proportionate share of liability. There is no evidence as to an approximation of Cross‐complainant TOT's total recovery nor Ruby Plumbing's proportionate share of that liability. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Ruby Plumbing and Electrical Supply, Inc. shall prepare a writt...

Excerpt: ... the real property identified as San Mateo County Assessor Parcel Nos. 009‐413‐010 and 009‐413‐020, which are more accurately depicted in the legal description and map attached to the City's Complaint filed in this action (“Property”), by eminent domain. The City has deposited, pursuant to Article I of Chapter 6 of Title VII of the Code of Civil Procedure (commencing with Section 1255.010) an amount that satisfies the requirements of ...

Excerpt: ...d responses have been served, no POS nor any evidence regarding the date or method of service was provided. In addition, the copies of the responses attached to the declaration of Benjamin Graves do not include a verification as to Sets Two and Three. Unverified responses are the equivalent of no response at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632. The request for sanctions is also GRANTED pursuant to CCP §2033.280(c). Plaintif...

Excerpt: ...ablished the existence of an arbitration agreement, and there is no basis to deny enforcement of the agreement under CCP §1281.2. Plaintiffs do not dispute that their claims for breach of fiduciary duty and dissolution of the A Family Affair Elder Care LLC are subject to arbitration under the LLC's operating agreement. They contend, however, that the claims for partition of the Vera and Canyon properties are “non‐arbitrable” and that, as a...

Excerpt: ... to Plaintiff's Request for Production of Documents from Defendants Stephanie Chenevert and Luis Balenko (“Defendants”) and Request for Monetary Sanctions is DENIED as untimely. Any party shall be entitled as a matter of right to have motions concerning discovery heard on or before the 15th day before the date initially set for the trial of the action. (C.C.P. §2024.020(a).) In this case, the hearing on this motion is set 13 days before the ...

Excerpt: ... Sandoval Torres wanted for all of her children is a sufficient allegation that Plaintiffs were recipients of an express testamentary gift, which was denied to them due to the errors of the drafting attorney, when taken as true for purposes of demurrer, to establish that Defendant owed a duty to Plaintiffs. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written ord...

Excerpt: ...RUSTEE, JAMES E. SALVEN TENTATIVE RULING: Plaintiff's motion to compel appearance at deposition and to produce documents is GRANTED. Safeco offers four grounds for refusing to appear for deposition. None has merit. A. Duplicative Deposition. Safeco's first objection is that the deposition of Safeco is duplicative, since Plaintiff has already taken depositions of four Safeco employees, Ms. Hoelscher, and three of her attorneys. Deposition of a cor...

Excerpt: ...action. (C.C.P. § 1030(a).) The court shall order the undertaking if the moving defendant establishes through evidence that: (1) the plaintiff is an out‐of‐state resident, and (2) that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. (C.C.P. § 1030(b).) If the court determines that the grounds for the motion have been established, the court shall order that the plaintiff f...

Excerpt: ...es. Mr. Gross's declaration states that “The timekeepers listed [in the summary sheet of fees incurred] include attorneys Daniel Tobin, Elisabeth Connell, Tanya Taylor, myself and paralegal Karen Miller. The billing rates charged for each timekeeper are reasonable rates for lawyers and paralegals with commensurate experience litigation similar actions in California.” Gross Decl., ¶ 6. Plaintiff, however, has not submitted declarations from t...

Excerpt: ...s not reasonable. As with the defendant in Hopkins v. Carley, 200 Cal. App. 4th 1401 (2011), Defendant did not exercise reasonable diligence in arranging for his defense. As the court noted in that case: . . . Before a defendant can secure relief under section 473(b) based on a failure to adequately defend himself, he must show that “‘in arranging for his defense ... he has exercised such reasonable diligence as a man of ordinary prudence usu...

Excerpt: ...d in April 2018 and that Darren Wallace has been named Executor of Plaintiff's estate. A probate estate is not a legal entity; it has no capacity to sue. Any litigation for the decedent must be maintained by the executor, administrator, or trustee of the estate. (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344; Code of Civ. Proc. Sect. 368.5 (decedent's estate may substitute executor or other representative into action as party).) Plaintiff,...

Excerpt: ...or coordination under Code of Civil Procedure section 404.1; and the cases are “not complex” under guidelines established by the Judicial Council. (See Code of Civ. Proc. § 403.) The motion does not meet the criteria for transfer and consolidation. A. The Motion Does not Demonstrate Common Questions of Fact. The motion does not show that common questions of fact exist. In the present action, Plaintiff alleges that he was injured when the bus...

Excerpt: ...RY HALTEH, TRUSTEES OF THE HALTEH SI & MS 2000 TRUST TENTATIVE RULING: Plaintiff's request for judicial notice that on August 6, 2018 the Agent for Service of Process for PROGRESSLY, INC., resigned and filed a resignation with the California Secretary of State is GRANTED pursuant to California Evidence Code Section 453 as the information is not subject to reasonable dispute. Plaintiff's remaining requests for judicial notice are DENIED. Plaintiff...

Excerpt: ...ot that it will obtain a judgment against the defendant. Daiho claims Defendant AWD breached the parties' Master Transaction Agreement by failing to pay hundreds of invoices issued to AWD from December 2016 to May 2018. Daiho claims the total principal amount owed under the invoices is $11,502,014.21. Daiho's claim is supported by the declaration of Toru Hosoi, general manager of Daiho's Overseas Division. AWD claims that it made $9,182,517.74 in...

Excerpt: ...otion is denied. 1. The Motion Is Procedurally Defective. To coordinate actions that are in different courts, a party may file a Petition for Coordination. The petition for coordination must be submitted to the “Chairperson of the Judicial Council.” (Code of Civ. Proc. §404.) The present motion, even if deemed a “petition,” does not satisfy this requirement. Instead of serving the petition on the Judicial Council, Plaintiff filed it with...

Excerpt: ...D in its entirety. Summary judgment “shall be granted if all the papers submitted show 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 Civ. Proc. §437c(c). Summary judgment in favor of a defendant is proper if (1) the defendant shows that one or more elements of a cause of action cannot be established or there is a complete defense to it; and (2) the plaintiff...

Excerpt: ...case, the dismissal was not entered against plaintiff. However, the declaration of Kenneth Freed states that plaintiff never intended to dismiss the entire action. Plaintiff inadvertently submitted a request for dismissal of the entire action when plaintiff only intended to dismiss the DOE defendants. As a result, it appears the dismissal which was signed by Freed, was entered without plaintiff's consent. For that reason, it should be set aside. ...

Excerpt: ... have been a relatively minor automobile collision that caused about $750 in property damage to Plaintiff's bumper. Although the exact amount is disputed, it appears Plaintiff's claimed medical specials to date are in the area of $9,000. There is a dispute as to liability as between the parties. CCP 403.040(b) states: (b) If a party files a motion for reclassification after the time for that party to amend that party's initial pleading or to ...