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: ...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: ... 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: ...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: ...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: ...) 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: ... 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: ...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: ... 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: ...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: ...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: ...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: .... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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 ...