Excerpt: ...the “prevailing party” on the Petition to Release Mechanic's Lien. Petitioner contends that “Petitioner is the prevailing party as it obtained the relief sought in its Petition as evidence by the subsequent release of the Subject Mechanics Lien.” MPA, p.3. Petitioner notes that “Respondent's initial refusal to release the Subject Mechanics Lien caused the filing of the Petition and Respondent should not be able to avoid the consequences...

Excerpt: ...rate that Code of Civil Procedure section 128.7(b) has been violated. Plaintiff contends that sanctions are warranted because Defendant's Motion to Dismiss was meritless and filed for the purpose of harassing and burdening Plaintiff. However, Defendant moved to dismiss the Complaint after the time for Plaintiff to file a First Amended Complaint expired. The Court recognizes that Plaintiff attempted to file a First Amended Complaint on October 19,...

Excerpt: ...graphs 44, 45, and 63 and the prayer for relief of the FAC is GRANTED WITH LEAVE TO AMEND. Plaintiff seeks punitive damages in connection with her strict liability and intentional infliction of emotional distress claims. To support a claim for punitive damages, the plaintiff “must allege the ultimate facts of the defendant's oppression, fraud or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316‐317.) “Malice” is defined as “con...

Excerpt: ...erested subcontractors. Wheeler's unopposed Request for Judicial Notice is GRANTED (Evid. Code, § 452, subd. (d)), BUT NOT FOR THE TRUTH OF ANY FACTUAL MATTERS ASSERTED THEREIN (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483‐484). Wheeler and Plaintiff Thompson Builders Corp. (Thompson) entered into a written contract for a commercial and residential project (the Project) in San Carlos (the Wheeler/Thompson Contrac...

Excerpt: ...treat the demurrer as admitting all material facts properly pleaded.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Ibid.) As to Defendant and Cross‐Complainant...

Excerpt: ...nied in part and granted in part as to Document Categories 3 and 4. Defendant's written response states that that it will comply with the request and produce “non‐privileged” document. The response implies that privileged documents will not be produced. Defendant must supplement its responses to Categories 3 and 5 by identifying all responsive documents that are withheld under privilege, i.e., produce a privilege log. (Code of Civ. Proc. §...

Excerpt: ...aintiff Sunstone DID NOT SUE STILLCREEK in the Complaint. The individual defendants and Stillcreek filed a Cross‐Complaint against Sunstone alleging claims of breach of contract and negligence for defective work. Sunstone filed an arbitration claim against Stillcreek seeking payment; and Stillcreek and the individual defendants filed a cross‐claim for arbitration, with allegations identical to those in their Cross‐Complaint. The Arbitrator ...

Excerpt: ...red. Defendants were served with a 60‐day termination notice via posting and mailing on October 8, 2021. See Compl., Exh. 3; Civ. Code §§ 1946, 1946.1; C.C.P. § 1162 (a)(3). The 60‐day notice period is determined by excluding the day of the posting and mailing and including the last day of the 60‐day period. C.C.P. § 12; see also Losornio v. Motta, 67 Cal. App. 4th 110, 113 (1998), as modified (Oct. 8, 1998), as modified (Nov. 2, 1998)....

Excerpt: ...occurred on February 7, 2019, but this action was not filed until more than two years later on June 28, 2021. Defendant acknowledges that the Judicial Council adopted California Rules of Court, Emergency Rule 9 though. Rule 9 tolled statutes of limitations for civil causes of action from April 6, 2020 until October 1, 2020, but Defendant argues that Rule 9 only applies to statutes of limitations that expired during this time frame. The Court find...

Excerpt: ...ws: On a motion for preliminary injunction the court evaluates two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits of the claim at trial, and (2) the interim harm the plaintiff would be likely to suffer if the injunction is denied as compared to the harm that the defendant would be likely to suffer if the injunction is granted. (Amgen Inc. v. Health Care Services (2020) 47 Cal.App.5th 716, 731.) The weighing...

Excerpt: ...on or defenses).) The Court reminds Defense Counsel to comply with all Rules of Court in the future. “Rules of Court have the force of law and are as binding as procedural statutes . . . .” (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.) I. PLEADING DEFECTS AS TO ALL CAUSES OF ACTION GENERALLY Demurrer is SUSTAINED WITH LEAVE TO AMEND. Defendant City's demurrer on the ground that the Complaint fails to allege a statutory basis for l...

Excerpt: ...laint of Plaintiff Chris Langer (“Plaintiff”) is OVERRULED. Plaintiff alleges two claims for violation of the Unruh Civil Rights Act and Unfair Competition Law based on Defendants' failure to comply with the Americans with Disabilities Act (“ADA”). Defendants assert that the Complaint fails to state facts to support a claim because Bridgepoint Inn's website complies with 28 Code of Federal Regulations section 36.302(e)(1)(ii) (“Reservat...

Excerpt: ... telephone, for the purpose of determining whether an agreement could be reached to resolve the objections to be raised in the demurrer. In this case, Defendants' counsel's declaration shows that she attempted to meet and confer only by letter. It does not appear that counsel attempted to meet and confer by telephone or in person, as required by C.C.P. § 430.41(a)(3). Additionally The Opposition was served by overnight delivery, which means Defe...

Excerpt: ...Defendant's alleged non‐payment of rent from Nov. 2020 through Sept. 30, 2021. Per Code Civ. Proc. Sects. 1179.02 and 1179.03, unpaid rent for this time period is considered “COVID‐19 rental debt,” which triggers certain requirements in the written Notice. Because UD cases seek lease forfeiture and are summary proceedings, courts strictly construe the statutory procedures that regulate UDs. Civ. Code Sect. 1442; Kwok v. Bergren (1982) 130...

Excerpt: ...Defendants contend that Plaintiff's first cause of action for harassment fails because Plaintiff cannot establish that she was subjected to severe or pervasive conduct that altered the conditions of her employment, or that the alleged actions of which she complains were based upon her sex, gender, sexual orientation, gender identity, and/or gender expression. According to Defendants, “much of the conduct about which Plaintiff complains cannot b...

Excerpt: ...ies, Inc.'s (Genesys) Motion to Strike is GRANTED IN PART WITHOUT LEAVE TO AMEND AND DENIED IN PART. 1. Punitive Damages Genesys contends TEN6's claim for punitive damages should be stricken because the Cross‐Complaint failed to state a claim for fraudulent misrepresentation. But as explained in the Court's ruling on the demurrer, TEN6 has stated a claim for fraudulent inducement to enter into a contract. This is a sufficient basis for TEN6's c...

Excerpt: ...urfaces and walkways” of a shopping center owned by Millbrae Square (Resurfacing Project). (Pl. SSUMF #2; Imbimbo Decl., ¶ 1.) The system allegedly failed (Pl. SSUMF #4; Imbimbo Decl., ¶ 1), and Millbrae Square sued nine defendants, including RPMI(Pl. SSUMF #1). In its complaint, Millbrae Square asserted one cause of action for breach of warranty against RPMI. (Pl. SSUMF #8.) RPMI is a Delaware corporation with a principal place of business i...

Excerpt: ...l basis for the Disqualification Motion, the Court finds that Defendants did not act in bad faith within the meaning of Code of Civil Procedure sections 128.5 and 128.7 by filing the motion. Defendants' request for sanctions is DENIED. In denying the request, the Court notes that the issue is close because the Court advised Plaintiff at the hearing on the Disqualification Motion that it saw no basis for an award of sanctions based on its review o...

Excerpt: ...mited's (TEN6) CrossComplaint (Demurrer) is OVERRULED IN PART and SUSTAINED IN PART WITH LEAVE TO AMEND. 1. Standard On a demurrer, the Court must “give the pleading a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (I...

Excerpt: ... no Default Judgment has yet been entered against him. Defendant Thomas P. Davies' Motion to Set Aside Default entered March 24, 2020 is DENIED for the following same reasons: (1) Defendant is not entitled to relief under Code of Civil Procedure Section 473(b) as more than six months have passed since entry of the default; (2) Defendant is not entitled to relief under Section 473(b) due to his failure to comply with the statutory requirement that...

Excerpt: ...wood Drive in Pacifica, Ca. The owner of the school property, Defendants Ignatian Corp. and St. Ignatius College Preparatory (“School”) is in the process of demolishing an old structure on the property, which has involved some asbestos abatement. Plaintiff claims Defendants failed to obtain all of the required permits/approvals before beginning the demolition and asbestos abatement work, including CEQA/environmental approvals. Plaintiff also ...

Excerpt: ...e knowledge or notice of the facts as to which Plaintiffs assert delayed discovery. Tolu's demurrer to the Second Amended Complaint on the basis of statute of limitations is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs shall file and serve their Third Amended Complaint on or before December 26, 2022. There is a relaxed duty of inquiry applicable to fiduciary relationships, though “the general rules relating to pleading and proof of facts excusing ...

Excerpt: ..., filed 10‐18‐21, is DENIED. C.C.P. 483.010 et seq. The Attachment Law requires strict construction; unless specifically provided for by the Attachment Law, no attachment procedure may be ordered by the court. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106. As the moving party, Plaintiffs have the burden of proving a proper basis for Attachment. C.C.P. 484.090. Plaintiffs assert claims for money had and re...

Excerpt: ...nd dryer are personal property that remained in the premises after the deadline to vacate. (Decl. of Tsang, Ex. 4.) Further, Defendants were required to remove all trash except “any trash from the outdoor spaces which has been left by Plaintiff . . . .” (Stipulation para. 2.) Plaintiffs' opposing evidence shows extensive amounts of trash and refuse left in the yard of the rented property (Decl. of Tsang, Ex. 4) and in Plaintiffs' adjacent vac...

Excerpt: ... the Complaint alleges compliance with applicable claims statutes, the government claim attached to the Complaint shows that Plaintiff did not file it within six months of the accrual of her cause of action, as required by Gov't Code § 911.2. Facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint. (Moran v. Prime Healthcare Mgmt., Inc (2016) 3 CA5th 1131, 1145‐1146.) Plaintiff ...