Excerpt: ...nd (d), Defendant should be compelled to provide facts supporting its denial of Plaintiffs' requests to admit that Defendant's agents had not determined that Plaintiff's conduct had met the definition of “cause” as set forth in the parties' employment agreements. Plaintiff acknowledges that Defendant has responded that its denial is based on its in‐ house counsel's determination that Plaintiff “was not forthcoming about the veracity of th...

Excerpt: ... fraud, oppression or malice by Defendant to support punitive damages. The Court rules on the motion as follows: Defendant's unopposed motion for judicial notice is GRANTED. Plaintiff's objection to Defendant's Exhibit L is SUSTAINED based upon hearsay, lack of personal knowledge and authentication. Plaintiff alleges that Defendant failed to: (1) warn about permanent collagen destruction; (2) properly train purchasers; and (3) advise that the dev...

Excerpt: ...nd attached Exh. A.) California law favors arbitration. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Plaintiff Mark Smoot (“Plaintiff”) argues that the arbitration provision in the offer letter is unenforceable because it is unconscionable. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 7...

Excerpt: ...arties' briefing and finds that the 11‐08‐19 Watanabe declaration sufficiently demonstrates the default occurred because Tesla's in‐house counsel mistakenly/inadvertently failed to promptly assign the matter to local litigation counsel. The Court strongly favors resolving cases on their merits. The 08‐ 19‐19 default should be and HEREBY IS SET ASIDE. Where relief is based on attorney fault, §473(b) requires the Court to direct the atto...

Excerpt: ... Code Civil Procedure §437c. The Motion for Summary Judgment and Summary Adjudication of the Loves' claims is DENIED as moot, in light of the voluntary dismissal of the Loves' Cross‐Complaint on 12/11/19. Sereno has established each of the elements of its cause of action for breach of contract. The Loves agreed to pay Sereno 5% of the purchase price of the subject property if buyers completed the transaction or were prevented from doing so by ...

Excerpt: ... and did not cause Plaintiff's injuries. The Court denied Defendants' motion on June 24, 2019. (See June 24, 2019 Minute Order, of which the Court takes judicial notice on its own motion.) Now, in this motion, Defendants once again assert that they complied with the applicable standard of care and did not cause Plaintiff's injuries. However, Defendants have not presented any newly discovered facts or circumstances, or law, that support reconsider...

Excerpt: .... §430.10(e). The Fourth Cause of Action sufficiently alleges the elements of fraud by intentional misrepresentation. See CACI 1900; FAC, ¶¶40‐49. Defendants appear to argue they cannot or should not be held liable for their alleged false representations because they signed the 2016 forms in their capacity as purported Director or Partners of the LLC. Even if this argument otherwise had merit, it fails here because, as alleged, the LLC disso...

Excerpt: ...o Strike Punitive Damages decided. Code Civ. Proc. §1281.4. The Court finds that resolution of this issue will not frustrate the arbitrator's jurisdiction since WIN is not a party to the arbitration and whether WIN faces exposure for punitive damages will not impact any issue in the arbitration. However, the pending punitive damages' exposure to WIN, which is not covered by insurance, does have a substantial impact on WIN. Therefore, the Court l...

Excerpt: ...c. Code § 438(h). 1 st COA – Breach of Express Warranty Defendant contends Plaintiffs have failed to assert a cause of action for breach of express warranty because Plaintiffs have not alleged the “latent defect” in the timing chain system manifested itself during the five‐year express warranty period. According to Defendant, “the warranty expired over six months before Plaintiffs filed their First Amended Complaint on January 18, 2019...

Excerpt: ...t. The parties to this case are involved in two simultaneously‐pending cases, apparently involving the same subject matter—this case and another in Wisconsin. See Matrix's 7‐ 2‐19 Motion, Ex. A (attaching Complaint filed in Wisconsin Circuit Court, captioned Matrix IT Medical Tracking Systems, Inc. v. Time Traveller, Inc. and Vitaly Golomb, Case No. 2019CV000968). In the present motion to stay, Matrix seeks to stay this case in favor of t...

Excerpt: ...nce and breach of fiduciary duty is based on the claim that Defendants did not owe her a duty because she was not a named beneficiary of the CWK trust. According to Defendants, “Because Plaintiff fails to allege any facts qualifying her as an expressly designated recipient of any provision in the CWK Trust gifting her the bequest she now seeks (i.e., a provision in the CWK Trust shielding her from tax liability), the Defendant Attorneys owed he...

Excerpt: ...gust 29, 2019 declaration in support of motion to amend complaint, ¶¶13, 15. This confirms Lyft's electronic records which show that Plaintiff consented to Lyft's terms on more than one occasion; and is sufficient to establish that the electronic signature affixed to these consents is attributable to Plaintiff, and that a valid contract to arbitrate was created. Plaintiff further admits that he did not opt out of these previous arbitration agre...

Excerpt: ...fore, Plaintiff has failed to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account and account stated claims is GRANTED. Plaintiff presents evidence to establish all the elements of both its open book account and account stated claims. (See Plaintiff's Statement of Undisputed Facts nos. 1, 3, 4, 6‐8, 10‐13, and 15‐17.) Defendant failed to oppos...

Excerpt: ...” As a result, the motion to tax costs for CCP § 638 trial fees is GRANTED in the amount of $39,444.00. Trial Technology Support Services Defendant contends that Plaintiff's costs for trial technology support services are not allowable under CCP 1033.5(c)(4) because they were not “reasonably necessary to the conduct of the litigation.” As the party opposing costs, Defendant bears the burden of demonstrating that the costs were not reasonab...

Excerpt: ..., 2019) No. 19‐CV‐00114‐YGR, 2019 WL 2423375, at *3, 4.) All four causes of action are based on the allegation that Defendant censored or interfered with Plaintiff's speech. (SAC para. 37, 40, 43, 45, 49, 52.) Since all claims treat Defendant as a publisher of content provided by another information provider (Plaintiff), the CDA immunizes Defendant from liability as to all claims. Plaintiff argues that his first and second causes of action ...

Excerpt: ...othy Anderson and Elizabeth Cullinan (collectively “Cross‐Defendants”) to the Cross‐Complaint of Defendant/Cross‐ Complainant Florence Fang (“Cross‐Complainant”) is ruled on as follows: (1) The Town of Hillsborough's Demurrer to the First Cause of Action for Violation of the Fair Housing Act is SUSTAINED WITH LEAVE TO AMEND for Cross‐Complainant to cite the specific statute under which she is bringing this claim. (2) Cross‐Def...

Excerpt: ...izable claim to an easement on Defendant's property. Defendant separates her arguments with respect to the individual and entity Plaintiffs, based on her claim that the 1907 subdivision map is referenced in the deed to 655 Miramar Dr., Parcel 1, the adjacent property owned by entity Plaintiff TEG Partners, LLC, but that the 1907 map is not referenced in the deed to 18 Terrace Avenue, the nonadjacent property owned by the individual Plaintiffs. Al...

Excerpt: ...for sanctions, filed 8‐8‐19, is GRANTED‐IN‐PART, as set forth below. The motion to compel the deposition of AAC's person most knowledgeable (PMK) is GRANTED‐IN‐PART. The motion has merit, for multiple reasons. First, the Court already denied AAC's “Motion for Temporary Stay, to Quash, and to Continue the Date of the Deposition,” in which AAC made the same argument that it simply re‐hashes here. See 7‐24‐19 Minute Order. ACC ...

Excerpt: ...e 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 that the judgment is void because she was not properly se...

Excerpt: ... to any material fact and that 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(s) of action cannot be established, or there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). On summary judgment or adjudication, the court considers all of th...

Excerpt: ...d the deposition of Mercado in her individual capacity. Mercado previously appeared for deposition after Defendant designated her as Defendant's person most qualified to testify for Defendant. Plaintiff is not precluded from taking Mercado's deposition in her individual capacity under Code of Civil Procedure section 2025.610(c)(1). Defendant now seeks a protective order as to further deposition of Mercado pursuant to Code of Civil Procedure secti...

Excerpt: ... other common count claims for: (1) money had and received, (2) for goods, wares and merchandise sold and delivered, (3) for money lent, and (4) for money paid out. (See Complaint, Second Cause of Action for Common Counts, ¶¶ CC‐1(b)(1), (3), (4) and (5).) Plaintiff fails to address these claims, and therefore has not met its initial burden of proving these claims such that it is entitled to judgment as a matter of law. Further, summary adjud...

Excerpt: ...� 15610.30 is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). The TAC does not allege PSI directly engaged in financial abuse, rather, it alleges PSI “assisted” Defendant Khalid in committing financial abuse by failing to provide Plaintiff Riley with “mandated” counseling services, and by failing to conduct sufficient due diligence to confirm the Trust's proper Trustee, and to confirm whether Khalid was Riley's attorney‐in�...

Excerpt: ...rney's fees. The complaint has not been dismissed as to Defendant; no judgment has been entered by which “neither plaintiff nor defendant” obtained any relief; no judgment has been entered by which Plaintiff has not recovered any relief against Defendant. (See Code of Civ. Proc. Sect. 1032, subd. (a)(4).) The case of Profit Concepts Management, Inc. v. Griffith (2008) 162 Cal.App.4th 950 is inapplicable. In that case, the defendant was deemed...

Excerpt: ... § 437c(p)(1).) Plaintiff's motion only addresses the common count claims for open book account and account stated, but the Complaint also alleges other common count claims for: (1) money had and received, (2) for goods, wares and merchandise sold and delivered, (3) for money lent, and (4) for money paid out. (See Complaint, Second Cause of Action for Common Counts, ¶¶ CC‐1(b)(1), (3), (4) and (5).) Plaintiff fails to address these claims, a...

Excerpt: ...FS LUIS B. CABRERA AND NORMA CABRERA (“PLAINTIFFS”). TENTATIVE RULING: Defendants Select Portfolio Servicing, Inc., Deutsche Bank National Trust Co., and JPMorgan Case Bank, N.A.'s demurrer to Plaintiffs' first amended complaint is SUSTAINED without leave to amend. The claims asserted by Plaintiffs against Defendants Select Portfolio Servicing, Inc., Deutsche Bank National Trust Co., and JPMorgan Case Bank, N.A. are barred by the doctrine of ...

Excerpt: ...t aside a default under § 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted …”). To the extent Defendant seeks relief under § 473(d), the moving papers provide no persuasive argument or authority indicating the Judgment is somehow “void.” Further, and as independent grounds for denying the motion, it lacks sufficient evidentiary support. ...

Excerpt: ...e of the evidence that “minimum contacts” exist between defendant and the forum state to justify the imposition of personal jurisdiction. (Mihlon v. Sup. Ct. (1985) 169 Cal.App.3d 703, 710; Ziller Electronics Lab GmbH v. Sup. Ct. (1988) 206 Cal.App.3d 1222, 1232.) Here, Plaintiffs Jeffrey C. Poetsch and JC Poetsch Advisors, Inc. (“Plaintiffs”) have not established that the court has either general or specific jurisdiction over Defendants....

Excerpt: ...endants' requests for admission Nos. 3‐8 from Plaintiff Carol Hoy ask her to admit that she created notes relating to (1) William Hoy's medical care, (2) this lawsuit, and (3) William Hoy's deposition, and that she subsequently destroyed those notes. Plaintiffs contend that the requests are “fundamentally unfair.” However, Plaintiffs have provided no pertinent authority supporting the claim that the requests are unfair. In determining wheth...

Excerpt: ...nlawful detainer action filed against him, which the court granted through February 16, 2018 conditioned upon Moore's payment of monthly rent of $6,300.00 during the stay. (Ibid.) Moore paid the $6,300.00 monthly rent in December 2017 and January 2018, which is the amount he now wants released. Staying the unlawful detainer action is in the nature of an injunction, and a bond may be required. (The Rutter Group, Cal. Prac. Guide: Landlord‐Tenant...

Excerpt: ... de‐published. (See Opposing P&A at 7:2 (citation to depublished opinion in Leung v. Verdugo Hills Hospital (review granted; opinion vacated).) Defendant Chang's motion to confirm settlement in good faith is GRANTED. The disputed Tech‐Bilt factor is the rough approximation of plaintiff's total recovery and settlor's proportionate liability. The party opposing the good faith determination has the burden of establishing the lack of good faith. ...

Excerpt: ...dgment or adjudication, the court considers all of the evidence and all of the inferences reasonably drawn therefrom, and views such evidence and inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843‐856. Any doubts as to the propriety of granting the motion are normally resolved in favor of the party opposing the motion. Id. As to the 10‐17‐18 First Amended Complaint's (F...

Excerpt: ... 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 that the judgment is void because he was ...

Excerpt: ...Purchase Agreement. The present proceedings are hereby STAYED pending completion of the arbitration. 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' first, second, third, and fourth causes of action are jointly asserted against Defendants Lurline and Jaojoco. Each of the causes of action arises from the same transaction governed by t...

Excerpt: ...defaulted under the terms of the Settlement Agreement and that the Settlement Agreement provides for entry of judgment, it is unclear whether the Court may enter judgment at this time. A partition complaint shall set forth “[a]ll interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that plaintiff reasonably believes will be materially affected by the action, whether the n...

Excerpt: ... et. seq.; Armendariz v. Foundation Health Psychcare Services Inc. 24 Cal.4th 83, 97 (2000) (“California law, like federal law, favors enforcement of valid arbitration agreements.”); Cione v. Foresters Equity Services, Inc. 58 Cal.App.4th 625, 642 (1998) (a heavy presumption weighs in favor of enforcing arbitration agreements). Although arbitration is a matter of contract, non‐signatories to arbitration agreements may be bound by an agreeme...

Excerpt: ...redited) 06‐10‐19 Cross‐Complaint (XC) is OVERRULED. Code Civ. Proc. §430.10(e). A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading, that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. All properly pleaded facts are assumed true. Chavez v. Indymac Mortg. Servs. (2013) 219 Cal.App.4th 1052, 1057. In ruling on a demurrer, the trial court is required to ...

Excerpt: ...settling party DKS on January 25, 2019, which was prior to this Application being filed on April 10, 2019. Upon dismissal, the court lost jurisdiction over DKS. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425 (voluntary dismissal deprives court of subject matter and personal jurisdiction).) “Where the plaintiff has filed a voluntary dismissal of an action …, the court is without jurisdiction to act further …, and any subsequent order...

Excerpt: ...ion against it because it has no duties to third parties under Bus. & Prof. Code § 24074. This argument, however, was squarely rejected in Cohn v. Gramercy Escrow Co., 65 Cal. App. 3d 884, 892–93 (Ct. App. 1977). In that case, which relied on decisions in Grover Escrow Corp. v. Gole, 71 Cal.2d 61 (1969) and Doyle v. Coughlin 37 Cal.App.3d 911 (Ct. App. 1974), the court held as follows: The provisions of [Section 24074] are mandatory and as suc...

Excerpt: ...aintiff's complaint seeks payment for work performed at that project. Therefore, Plaintiff's complaint is a dispute that relates to the Agreement. Plaintiff does not demonstrate that the Agreement is procedrually unconscionable. Defendant sent the Agreement to Plaintiff in the evening of October 21, 2018. That same evening, Plaintiff responded “the contract is good and will sign it.” (Email from Gaddis to Lee, September 21, 2018, Exhibit 3 to...

Excerpt: ..., but also “prejudgment interest in the amount and at the rate provided by law.” (See Complaint, Prayer, 2:21.) Plaintiff presents no evidence as to the amount of interest sought. Further, Plaintiff has not presented admissible evidence to establish all the elements of an account stated, including that Defendant JBJ Holdings, Inc. (“Defendant”) owed Plaintiff money from previous financial transactions and that Plaintiff and Defendant agre...

Excerpt: ...ant moves to strike the SAC on the ground that Plaintiffs are no longer represented by counsel, and cannot represent themselves in propria persona because Plaintiffs are an LLC and trustees of a trust. A court may strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. § 436(b).) Defendant fails to show that the SAC was “not drawn or filed" in ...

Excerpt: ...of the subject documents at the time the motion is made. (See CRC Rule 2.551(b)(4).) No documents are lodged under seal with this motion or RPM's motion for summary judgment. The motion fails to comply with the requirement that redacted public versions of the documents be filed. (Id. Rule 2.551(b)(5).) No redacted versions are filed. The court cannot determine whether the proposed redactions are sufficiently narrow. (See Rule 2.550(d) (sealing mu...

Excerpt: .... However, Defendant does not dispute that she was personally served with the summons and complaint on May 22, 2019. Accordingly, the court finds there are no grounds for granting Defendant's motion to quash service. Alternatively, Defendant seeks to set aside the default and default judgment on the basis of mistake and excusable neglect. According to Defendant, her failure to respond was due to the fact that she has a brain injury and cannot rea...

Excerpt: ...tion to exercise a lease extension was fraudulently misrepresented to him – and because it would promote judicial economy. He further contends that consolidation would “avoid the potential for irreparable injury.” According to Mr. Nguyen, “If the business is summarily evicted, at the least, both Mr. Nguyen and Mr. Tran will lose their only source of income and health insurance, and suffer irreparable harm.” [MPA, p.12] Mr. Nguyen relies...

Excerpt: ...�� namely, whether the nature of his option to exercise a lease extension was fraudulently misrepresented to him – and because it would promote judicial economy. He further contends that consolidation would “avoid the potential for irreparable injury.” According to Mr. Nguyen, “If the business is summarily evicted, at the least, both Mr. Nguyen and Mr. Tran will lose their only source of income and health insurance, and suffer irreparable...

Excerpt: ...ur to them. However, California requires that affirmative defenses be pleaded with ultimate facts. Demurrer is sustained because the affirmative defenses plead only legal theories, but not any ultimate facts. Defendants argue that the facts are set forth in the Cross‐complaint. Even if that were true, the allegations belong in the Answer. The case of Schaefer v. State Bar of California (1945) 26 Cal. 2d 739 does not support Defendants. Schaefer...

Excerpt: ...ts proposed answer within 5 days of this order. Defendant Adams claims that he sent the summons and complaint to an unnamed attorney in Santa Rosa. Mr. Adams indicates that he was too busy to follow up on his instructions that the attorney file an answer to the complaint. Based on the facts as set forth in Mr. Adams' declaration, it is questionable whether Mr. Adams exercised reasonable diligence in responding to the complaint. The court finds, h...

Excerpt: ...f $25,737, plus a 2.0 multiplier, plus $1,206.15 in costs/expenses. The Court declines to apply a loadstar enhancement/multiplier. The Court finds no basis to conclude the case was complex or novel. It appears to have been a fairly routine consumer warranty/lemon law case. Complexity is judged in part by whether the case involved: 1) numerous pre‐trial motions raising novel issues; (2) a large number of witnesses and documents; (3) a large numb...

Excerpt: ...ach of Express Warranty Defendant contends Plaintiff has failed to assert a cause of action for breach of express warranty because Plaintiff has not alleged that the “latent defect” in the timing chain system manifested itself during the five‐year warranty period. According to Defendant, Plaintiff has alleged “no manifestation of the purported defect in the timing chain.” [MPA, p.4] Construing the complaint liberally, however, Plaintiff...